Character Evidence

CHARACTER
5 EVIDENCE
1. Introduction 165 4. Bad Character Evidence of Non-party
2. Defendant Good Character Evidence Witnesses and Non-testifying
in Criminal Cases 168 Third Parties 221
3. Defendant Bad Character Evidence 5. Defendant Good Character in
in Criminal Cases 177 Civil Cases 231
6. Defendant Bad Character in Civil Cases 231
Definitions
Good character This normally signifies nothing more than that a defendant in a criminal case has
no previous convictions.
Blemished defendant A defendant who does not meet all of the normal requirements of having a
good character but, in some situations, may be treated as if he does.
Similar fact evidence Common law test for admitting evidence of previous bad character evi-
dence to suggest misconduct in the present, at variance to the general common law exclusionary
rule against adducing bad character evidence. Abolished in criminal cases by the Criminal Justice
Act 2003, though a form of the test still survives in civil matters.
Credibility The likelihood that a witness is telling the truth.
Propensity The likelihood that a person who has behaved in a certain manner in the past will have
done so again, and so ‘acted in character’ in the present.
1. Introduction
Human beings are, to some extent, creatures of habit. As a result, behaviour in the past, both
good and bad, can provide an indication as to likely conduct in the present. A neat illustra-
tion of this phenomenon is, perhaps, provided by an old case from Worcester, in which it was
recorded that a: ‘. . . fellow that stood in the pillory last Assizes, for attempting to commit a rape
upon a girl, being suffer’d to go on an errand, attempted lately in like manner a young woman in
the fields.’1 Obviously, evidence of previous behaviour is never conclusive of that in the present
and will, sometimes, be of relatively minor significance. Saints can turn sinner and thorough
reprobates go ‘straight’. Nevertheless, in many cases, and as the case from Worcester suggests,
previous conduct is of some probative value at trial.
This can operate in two ways. Assuming that an individual has provided evidence in some
form, whether orally or via a written statement, their personal history may have some bearing
1
Mist’s Weekly Journal, 23 July 1726.
05-Durston-Chap05.indd 165 4/28/2008 8:44:32 AM

166 character evidence
on the weight that can be attributed to their testimony. To take an extreme example, it is likely
that someone with numerous previous convictions for perjury will place little importance
on the duty to speak the truth when under oath. This does not mean that in any given trial
they will lie. It is, however, a factor that most tribunals would take into consideration when
deciding how much importance should be placed on their evidence. Thus, their previous mis-
conduct can be said to go to the issue of credibility, ie is what this individual has said worthy
of belief?
Of course, the illustration given is an extreme one. Whether a previous conviction for an
offence not involving dishonesty, or even a minor crime of dishonesty, should have a significant
effect on the way in which an individual’s evidence is considered is much more debatable, espe-
cially where they have no vested interest in the outcome of a case. In the latter situation, many
behavioural psychologists in the modern era would question its significance.
Pause for reflection

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arke year earlier?
ear
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Previous behaviour also has a second use; it can be a valuable indication as to likely conduct in
any given situation, irrespective of whether the party gives evidence or not. Let us assume that
in the case from Worcester the incident in the fields founded another prosecution for attempted
rape, and the defendant denied that it had occurred. Would his very recent previous conviction
for an identical offence, at the earlier assizes, be relevant to the case currently before the court?
Employing Lord Simon’s classic definition of relevance in DPP v Kilbourne [1973] AC 729, as
meaning ‘logically probative or disprobative’ of the facts in issue, it would. It is now known that
the defendant falls within the (hopefully) very small group of men who are willing to use force
to gain sexual satisfaction. Consequently, it can be argued that he has acted in accordance with
an established character trait. Such evidence can be said to go to the issue of propensity.
Cross-reference Box
Relevance is a key concept in the law of evidence and a prerequisite for the admissibility of all
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pp 30–33.
30–3
–333.
Of course, such earlier misconduct is certainly not conclusive of a defendant’s guilt. That some-
one has misbehaved in a very serious manner in the past does not mean that they have done so
in the present. However, there is often a danger that this will be assumed, for two reasons. First,
a tribunal of fact, especially if made up of laymen, may give the evidence more significance
than it properly deserves. This is sometimes referred to as ‘reasoning prejudice’. Secondly, if
they come to the conclusion that the accused is a ‘bad man’, they may decide not to give him the
benefit of any doubt. This is sometimes referred to as ‘moral prejudice’.
Unfortunately, it is often almost impossible to distinguish prejudice from legitimate reliance.
Research with mock juries and magistrates hearing simulated cases suggests that lay tribunals
that have been exposed to a defendant’s bad character are, in some (but not all) situations more

introduction 167
likely to convict. However, this may be because, despite the risk of prejudice, past misconduct
has considerable, and proper, evidential weight.
S Lloyd Bostock, ‘The effects on Lay Magistrates of Hearing that the

Defendant is of “Good Character”, Being Left to Speculate, or Hearing
that he has a Previous Conviction’ [2006] Crim LR 189
The results of the study confirm, not only the compelling nature of information about previous
convictions, but also the complexity of its effects. Armchair speculation, or what decision-makers
themselves believe about the likely effects of revealing or concealing previous convictions to mag-
istrates or juries may well turn out to be wrong. Some significant results could not be predicted,
though post hoc explanations have been suggested above, whilst other possible findings did not
appear. As with the simulated jurors, it seems that very sparse information is sufficient to evoke
a quite rich and potentially damaging stereotype. Significant effects were found even though
only minimal information about the previous offence was provided (namely the offence charge),
and there was only one conviction. The probative value of such information, without any details
of the earlier offence and its circumstances, is arguably very limited. As in the Jury Study, the
effects shown are not large, but they are significant and follow a consistent pattern. The results
with bench verdicts indicate that they may make the difference between a guilty and a not-guilty
verdict. Despite their difference experiences, the magistrates and simulated jurors seemed to
have similar perceptions of typical patterns of criminality, except that magistrates seemed to view
propensity as more fixed. For the magistrates, hearing about an old conviction could be as power-
ful as hearing about a recent one. Any previous conviction, recent or old, affected magistrates’
assessments of the defendant’s likely guilt and verdicts unfavourably, unless it was both recent
and dissimilar to the current charge. On the other hand, absence of information, or information
that the defendant is of good character, had a weaker impact than is sometimes assumed. It seems
that it is specific, concrete information that does the damage. Despite the assumptions the magis-
trates said they made about prior record, ‘no information’ was significantly more favourable than
information about a single previous conviction.
Obviously, evidence of propensity will be highly significant with regard to defendants in crim-
inal trials. Even so, it is not confined to them. For an example of other situations, consider a
trial for assault in which the accused man is advancing self-defence as the basis for a plea of
‘not guilty’. He claims that the alleged victim and chief prosecution witness was, in fact, the
aggressor in the incident. In such circumstances, the fact that the ‘victim’ has a long history
of violence, resulting in numerous previous convictions for such offences, is likely to be highly
relevant to the accused’s defence.
Indeed, evidence of propensity is not even confined to criminal trials, though it is most com-
monly encountered there. It can also be relevant to civil matters. For example, in a copyright
action it is alleged that the creator of a piece of music has, in reality, copied it from an earlier
piece composed by another artist. In his defence, he argues that any similarities are coinci-
dental. In this situation, the fact that the defendant has been successfully sued for breaches of
copyright, in similar cases, on earlier occasions, may be highly relevant to the likelihood of his
defence being accepted at trial.
Thus, previous conduct, good or bad, can go to issues of both credit and propensity, in civil
and criminal trials, and involve defendants, witnesses and even third parties. Sometimes, it
will be of enormous significance; at others, of little or no relevance. The use of good character is

largely a creature of case law, as is that of bad character in civil matters. Bad character in crim-
inal cases is now primarily regulated by the Criminal Justice Act 2003. This statute, the intro-
duction of which followed a major Law Commission report, has transformed the bad character
regime in criminal matters, making older authority largely (though not entirely) redundant in
this area. For the sake of convenience of exposition, good and bad character, in criminal and
civil cases, can be considered separately.
2. Defendant Good Character Evidence in

Criminal Cases
A defendant can call evidence to establish his ‘good’ character. This may be given during exam-
ination-in-chief by the defendant in person, by one of his witnesses, or be elicited from a pros-
ecution witness on his behalf during cross-examination. This can include a witness speaking
‘positively’ to an accused person’s virtuous character. Strictly speaking, such evidence is limited
to the general reputation of the accused, and can refer neither to a witness’s own personal view
of the defendant nor to specific creditable incidents involving them, since neither reveal general
reputation: R v Rowton (1865) Le & Ca 520. Thus, in theory, a clergyman might be called to say
that an accused has a very good character in his neighbourhood, but should not give details of his
voluntary work with the disabled or his own personal assessment of the individual’s character.
Even in the nineteenth century, a time of lower social mobility than the present, this proved
to be a difficult rule to apply in practice; in the modern era, a time when ‘reputation’ as a com-
modity is so much harder to establish due to population mobility, it is frequently tacitly ignored
in practice. As a result, a defendant who moves from bedsit to bedsit around the London area
may never acquire a ‘general’ reputation, but private individuals, who are familiar with him,
are often called to give character evidence and frequently touch on their personal views of his
virtues or specific aspects of his previous good conduct.
It can also be noted that the position in Rowton, taken to its logical conclusion, would enable
a character witness who personally believes an accused to be a complete rascal, and who knows
of highly discreditable incidents in his life, but who is unique in such knowledge, to provide an
excellent reference as to his general reputation, though Cockburn CJ wisely anticipated this by
also asserting that it was essential that any character witness also have a personally good opin-
ion of the defendant, otherwise they would be ‘deceiving’ the jury.
R v Rowton (1865) Le & Ca 520, CCR
Cockburn CJ
The only way of getting at it is by giving evidence of his general character founded on his gen-
eral reputation in the neighbourhood in which he lives. That, in my opinion, is the sense in which
‘character’ is to be taken, when evidence of character is spoken of. The fact that a man has an
unblemished reputation leads to the presumption that he is incapable of committing the crime for
which he is being tried. We are not now considering whether it is desirable that the law of England
should be altered—whether it is expedient to import the practice of other countries and go into

defendant good character evidence in criminal cases 169
the prisoner’s antecedents for the purpose of showing that he is likely to commit the crime with
which he is charged, or, stopping short of that, whether it would be wise to allow the prisoner to go
into facts for the purpose of showing that he is incapable of committing the crime charged against
him. It is quite clear that, as the law now stands, the prisoner cannot give evidence of particular
facts, although one fact would weigh more than the opinion of all his friends and neighbours. . . . It
is, moreover, most essential that a witness who comes forward to give a man a good character
should himself have a good opinion of him; for otherwise he would only be deceiving the jury; and
so the strict rule is often exceeded. But, when we consider what, in the strict interpretation of the
law, is the limit of such evidence, in my judgment it must be restricted to the man’s general reputa-
tion, and must not extend to the individual opinion of the witness.
However, although the ‘rule’ in Rowton is frequently ignored in practice (as even Lord Cockburn
noted in 1865), very occasionally, it asserts itself in some form. For example, in R v Redgrave
(1981) 74 Cr App Rep 10, the defendant was accused of an offence of gross indecency in a public
lavatory (ie a ‘homosexual’ offence). At his first trial he was allowed to adduce cards and let-
ters from various girlfriends, to suggest that he was not homosexual and thus was not likely
to have committed the offence of which he was accused. (For evidential purposes, if no other,
these must be considered analogous to specific creditable incidents.) This trial produced a hung
jury, and a retrial was ordered. The (different) judge presiding at the second trial did not allow
evidence of the correspondence to be given and the defendant was convicted.
The defendant appealed on the basis that it was wrong for such evidence to have been
excluded. Dismissing his appeal, the Court of Appeal upheld the decision in Rowton forbidding
the adduction of evidence of specific incidents. However, the court also accepted that it was
proper for a trial judge, as a special indulgence in such cases, to allow a defendant to assert that
he was happily married or had a steady girlfriend. Whether such an approach, which penalizes
promiscuous heterosexuals, would be followed today, is, perhaps, debatable.
R v Redgrave (1981) 74 Cr App Rep 10, CA
Lawton LJ
In our judgment the defendant is bound by the same rules as the prosecution. He can call evidence
to show that he did not commit the acts which are alleged against him, but he is not allowed, by
reference to particular facts, to call evidence that he is of a disposition which makes it unlikely that
he would have committed the offence charged. That this is the common law of England is shown
clearly by the decision in Rowton (1865) Le. & Ca. 520. In the course of his judgment in that case
Cockburn C.J. said at p. 530: ‘It is quite clear that, as the law now stands, the prisoner cannot give
evidence of particular facts, although one fact would weigh more than the opinion of all his friends
and neighbours.’ That is what the appellant was trying to do in this case. He was trying, by his evi-
dence about his relations with particular women and by the production of these letters and photo-
graphs, to show that he had had intimate heterosexual relationships with the writers of the letters
and the girls in the photographs, and he was relying on those particular facts to show that he had
not got a disposition to behave in the sort of way which the prosecution alleged. The problem in
this case is whether there is any exception in law to the general proposition laid down by Cockburn
C.J. nearly 120 years ago. The Court of Crown Cases Reserved in Rowton (supra), made up of no
less than 12 judges came to the conclusion, with two dissensions, that when a defendant wishes

to show he has not got a disposition to commit the kind of offence with which he is charged, he is
limited in what he can say. In 1866 he could call evidence to show that his general reputation made
it unlikely that he would commit the kind of offence with which he was charged. He could do that by
calling people who knew him, but beyond that he could not go. It follows therefore, so it seems to
us, that in this case, although disposition to commit the kind of offence charged was relevant, the
law is as decided in Rowton (supra), viz. that the defendant could do no more than say, or call wit-
nesses to prove, that he was not by general repute the kind of young man who would have behaved
in the kind of way that the Crown alleged.
In practice, although it is always useful for a defendant to be able to call a character witness,
when it comes to enjoying its legal consequences, having a ‘good character’ in an English crim-
inal trial usually means no more than that the defendant does not have previous convictions,
rather than that he is an upstanding and community minded member of society, given to doing
good works and helping his neighbours, and for whom others will vouch. As a result, at least
75 per cent of men (though not of defendants) over the age of 30 years are entitled to the legal
benefits that flow from a good character. Whether juries always understand that this is all that
the phrase entails is open to question; nevertheless, the Judicial Studies Board model direction
does suggest that, where there is positive evidence of an accused person’s good qualities, a trial
judge can point this out this in his direction on character.2

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Uses of Defendant Good Character

In R v Aziz [1995] 3 WLR 52 the House of Lords referred to the ‘sea-change’ that had occurred
in judicial thinking, with regard to the uses to which a defendant’s good character can be put,
over the previous decade. By then, there was a general recognition that the good character of a
defendant was both ‘logically relevant to his credibility and the likelihood that he would com-
mit the offence in question’. Thus, just as bad character can go to both propensity and credibil-
ity, so can good character. If a defendant has no previous convictions, their lack of a propensity
to offend is something that can always be considered when deciding whether they would have
committed the crime with which they are currently charged. Of course, how much weight this
carries will depend, in part, on the age of the defendant, becoming stronger as he gets older.
It will be more surprising, and so improbable, if a man of 60 suddenly starts to offend than it
would be if the individual were 18 years old.
Additionally, if a defendant elects to give evidence at trial, his lack of previous convictions is
a factor that the tribunal of fact can consider when deciding how much weight, if any, to place
on his testimony. Thus, if a woman of 50, of previous good character, is accused of shop-lift ing a
pork chop, and, in her defence, gives sworn evidence that she had forgotten that she had picked
2
Crown Court Bench Book 1, Specimen Directions, fi ft h edition, para. 23. Defendant’s Character—Good.

up the meat, the tribunal of fact might properly say to themselves ‘this woman is of previous
good character, that is something that can go into the balance when we consider whether she
would suddenly start to offend in this manner; additionally, she has given evidence that she
forgot she had picked up the steak, when deciding how much, if any, weight we can place on
her account we are entitled to put more significance on her testimony than if she had previous
convictions’. Obviously, both aspects of good character are conducive to acquittal (though cer-
tainly not conclusive), albeit that the second aspect will have this effect indirectly.
Judicial Directions on Defendant Good Character

In R v Vye and others [1993] 1 WLR 471, the Court of Appeal gave clear guidance on the relevant
principles to be applied when directing juries in ‘good character’ cases, though this has not
prevented the need for further cases elucidating various aspects of such directions. The aim in
Vye was to clarify issues relating to such directions that had begun with the case of R v Berrada
(1989) 91 Cr App Rep 131. In this case, the Court of Appeal took the view that where a defendant
of good character has given evidence, the judge must direct the jury about the relevance of good
character to his credibility; this is now known as the ‘first limb’ of a good character direction.
In Vye, Lord Taylor CJ confirmed the necessity for such a ‘first limb’ (or credibility) direction
where an accused testifies. He also ruled that a non-testifying defendant is entitled to a ‘first
limb’ direction when s/he has not given evidence at trial but relies on exculpatory statements
made to the police or others, which have been admitted as part of a ‘mixed’ statement. In such
a situation, the judge should direct the jury to have regard to the defendant’s good character
when considering the credibility of those statements. However, Lord Taylor added that a judge
would be entitled to point out that such out of court statements were not made on oath, unlike
in court testimony.
Cross-reference Box
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pp. 118–126 above.
Lord Taylor further ruled that where a defendant is of good character, whether he has testified
or not, a trial judge should always give a ‘second limb’ direction on the effect of good character
on the issue of propensity. The court accepted that the specific form of the direction is for the
judge to determine and it should be tailored to the particular circumstances of the case. An
appeal court would be ‘slow to criticise any qualifying remarks he may make based on the facts
of the individual case’. A defendant was still entitled to a full Vye direction even if he was being
tried with a co-accused who was of bad character (and whose lack of such a direction might
then appear conspicuous to a jury).
Cases since Vye have stressed that a failure to give both limbs of the good character direc-
tion where appropriate, or the second limb direction on its own if the accused does not testify,

will generally lead to a conviction being quashed. In R v Teeluck [2005] Crim LR 728 the Privy
Council noted that an improper failure to give even a necessarily tailored good character dir-
ection would rarely allow an appellate court to say that the giving of such a direction could
not have affected the outcome of a trial. Additionally, it should be noted that in the case of R v
Napper [1996] Crim LR 591, Lord Taylor held that the requirement to give a Vye direction was
unaffected by any need to give an appropriate ‘inference’ direction on defendant silence under
s. 35 of the Criminal Justice and Public Order Act 1994.3
R v Vye [1993] 1 WLR 471, CA
Lord Taylor CJ
(a) Defendant of good character not giving evidence . . . In our judgment, when the defendant has
not given evidence at trial but relies on exculpatory statements made to the police or others,
the judge should direct the jury to have regard to the defendant’s good character when consid-
ering the credibility of those statements. He will, of course, be entitled to make observations
about the way the jury should approach such exculpatory statements in contrast to evidence
given on oath . . . Clearly, if a defendant of good character does not give evidence and has given
no pre-trial answers or statements, no issue as to his credibility arises and a first limb direction
is not required.
(b) The ‘second limb’ direction
. . . It cannot be satisfactory for uncertainty to persist so that judges do not know whether
this Court, proceeding on a case by case basis, will hold that a ‘second limb’ direction should
or need not have been given. Our conclusion is that such a direction should be given where a
defendant is of good character. . . . We can see no logical ground for distinguishing in regard to
a ‘second limb’ direction between cases where the defendant has given evidence and cases
where he has not. Having stated the general rule, however, we recognise it must be for the
trial judge in each case to decide how he tailors his direction to the particular circumstances.
He would probably wish to indicate, as is commonly done, that good character cannot amount
to a defence. . . . Provided that the judge indicates to the jury the two respects in which good
character may be relevant, i.e. credibility and propensity, this court will be slow to criticise any
qualifying remarks he may make based on the facts of the individual case.
(c) Two or more defendants of good and bad character . . . In our judgment a defendant A of good
character is entitled to have the judge direct the jury as to its relevance in his case even if he
is jointly tried with a defendant B of bad character. This leaves the question as to what, if any-
thing, the judge should say about the latter. In some cases the judge may think it best to grasp
the nettle in his summing-up and tell the jury they must try the case on the evidence, there has
been no evidence about B’s character, they must not speculate and must not take the absence
of information as to B’s character as any evidence against B. In other cases the judge may, how-
ever, think it best to say nothing about the absence of evidence as to B’s character.
As with so many other areas of the law of evidence these principles have been reduced to a
succinct set of directions by the Judicial Studies Board; they are usually (but not invariably)
followed by trial judges when summing up to juries.
3
On such directions see p. 387.

JSB Crown Court Bench Book 1, Specimen Directions, fifth edition,

para. 23. Defendant’s Character—Good
You have heard that the defendant is a man/young man of good character [not just in the sense that
he has no convictions recorded against him, but witnesses have spoken of his positive qualities].
Of course, good character cannot by itself provide a defence to a criminal charge, but it is evidence
which you should take into account in his favour in the following way/s:
First limb
If a defendant does not give evidence and he has not made any statement to the police, or other
authority or person which is admitted in evidence, ignore 1 below.
1. (If a defendant has given evidence
e) In the first place, the defendant has given evidence, and as
with any man of good character it supports his credibility. This means it is a factor which you
should take into account when deciding whether you believe his evidence.
(If a defendant has not given evidence, but has e.g. made a statement to the police or has answered
questions in interview, see Note 2, below w). In the first place, although the defendant has chosen
not to give evidence before you, he did, as you know give [an explanation to the police]. In consid-
ering [that explanation] and what weight you should give it, you should bear in mind that it was
made by a person of good character, and take that into account when deciding whether you can
believe it.
Second limb
2. In the second place, the fact that he is of good character may mean that he is less likely than
otherwise might be the case to commit this crime now. (In cases where it is necessary to give
the Delay direction, see direction 37, para 4.)
I have said that these are matters to which you should have regard in the defendant’s favour. It is
for you to decide what weight you should give to them in this case. In doing this you are entitled to
take into account everything you have heard about the defendant, including his age, [ . . . ] and [ . . . ].
(Obviously the importance of good character will vary from case to case, and becomes stronger
if the defendant is a person of unblemished character of mature years, or has a positively good
character, and at this stage the benefit of this to a defendant whose good character justifies it may
be pointed out to the jury, with words such as:)) Having regard to what you know about this defend-
ant you may think that he is entitled to ask you to give [considerable] weight to his good character
when deciding whether the prosecution has satisfied you of his guilt).

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Good Character and ‘Blemished’ Defendants

As already noted, although, in Vye, the Court of Appeal did not provide full guidance as to
what constituted evidence of good character, in England (unlike, for example, New Zealand)
a defendant without previous convictions normally qualifies for a good character direction.

However, there will be cases in which an accused person has very minor or long past con-
victions that are, perhaps, even ‘spent’ under the Rehabilitation of Offenders Act 1974, and
who might be thought deserving of a Vye direction, despite their earlier transgressions.
Additionally, both Vye and Aziz expressly recognized that there were some situations in which
it would be wrong to give a good character direction to defendants, even if they were without
a formal criminal record. This could occur, for example, where they admitted committing
serious crimes in their own evidence or (sometimes) where, after being charged with two
offences based on the same incident, they pleaded guilty to the lesser one and went to trial on
the more serious matter.
Defendants in these classes are sometimes referred to as having ‘blemished’ characters:
R v Aziz [1995] 3 WLR 52. In such situations, case law suggests it might, sometimes, be proper
for a trial judge to give the good character direction in full, to tailor it significantly, or refuse it
altogether, depending on the circumstances of the individual case.
For example, the first course was followed in Shaw v The Queen (Belize) [2001] 1 WLR 1519, in
which the appellant was tried and convicted on two charges of murder. He claimed that he had
acted in self-defence. Amongst his grounds of appeal was that as a man without any previous
convictions the trial judge should have given the standard direction on good character and its
bearing on credibility and propensity. This submission did not impress the Privy Council. The
jury knew that the appellant had never been convicted before. However, they also knew, from
his own admissions, that he had dealt in a substantial quantity of cocaine and had been a mem-
ber of a violent armed posse. Had the judge given the jury a full direction it would have been so
qualified as to do the appellant more harm than good, so that its absence was not improper.
However, in some cases, as the court in Vye also made clear, it was appropriate to treat an
accused person with blemishes as being of good character and thus entitled to one or both
limbs of the full good character direction (depending on whether they gave evidence). Indeed,
one of the co-accused in Vye was so treated, despite having acquired a conviction as a youth.
Although there is considerable judicial discretion in such cases, it also appears that if the judge
does decide that a blemished defendant should receive a good character direction he is entitled
to both limbs (assuming he gives evidence). The Court of Appeal has held that a trial judge
should not limit himself to the credibility limb without also giving the propensity direction (or
vice versa), though a failure to do this will not necessarily make any ensuing conviction unsafe:
R v Corry [2005] WL 1185457.
In R v Aziz [1995] WLR 53 the House of Lords gave more detailed guidance on the appropri-
ate directions to be given to a jury when faced with a defendant with no convictions, whose
character was, in fact, blemished. The court also suggested that wherever there is any doubt as
to whether both limbs of the character direction apply, or wherever it is thought that it may be
necessary in the particular circumstances to modify such a character direction, it is desirable
to canvass the proposed direction with counsel before closing speeches.
How such directions could be modified was further considered in R v Durbin [1995] 2 Cr
App R 84, where the court laid down more specific guidelines. In particular, it stressed that
a jury should not be directed to approach the case on a basis that was either ‘artificial or
untrue’. Thus, for example, a jury should not be told that a defendant has no previous convic-
tions, when this is untrue, even if he is held to be entitled to a full good character direction.
In such a situation, a trial judge might direct them that the accused has ‘no relevant previous
convictions and should be treated as a man of good character’, before going on to give the
appropriate direction.
Applying such guidance in practice can be difficult, as can be seen when considering some
recent cases on blemished defendants. Nevertheless, it is also apparent from these cases that

the courts have taken a comparatively liberal approach towards granting such defendants a full
good character direction, only refusing it comparatively rarely.
Thus, in R v Payton [2006] Crim LR 997 it was held that a defendant accused of possession
of cannabis with intent to supply, who admitted simple possession, was entitled to a (suitably
modified) good character direction, despite having a previous conviction and caution for sim-
ple possession of the same drug (he had pleaded guilty to the former and, of course, admitted
the latter). Possession with intent to supply was considered to be a radically different offence
from simple possession. Similarly, in Durbin the defendant was held to have been entitled to a
full Vye direction, when charged with importing drugs in his lorry, despite having two recently
spent convictions for offences of dishonesty, admitting to having lied to customs officers when
initially questioned by them, and having confessed in his evidence to smuggling computer
parts across European borders.
In the case of R v Challenger [1994] Crim LR 202, it was held that a plea of guilty to a separate
offence predating the trial, albeit set out in a count or charge contained in the same indictment,
would be a conviction to be taken into account by the judge when deciding whether to give a
Vye character direction, ie it might be a reason to withhold such a direction. Nevertheless, in
the same case, it was also suggested that the situation might be different if the plea of guilty had
been tendered to an alternative to the charge upon which the defendant was standing trial; for
example, where there has been a plea to manslaughter to a charge of murder.
This conclusion was reached despite obiter comments by Lord Taylor CJ in Vye suggesting
that a second limb direction on the defendant’s lack of propensity to offend might be of little
assistance to a jury where the accused raised the partial defence of provocation in a murder
trial. This was because the argument that significance could be given to the fact that he had
never before stooped to murder would be countered by the fact that he had never previously
sunk to manslaughter either. However, Lord Taylor did not suggest that the second limb
direction could never be of relevance to whether a defendant was provoked to lose his self-
control.
Subsequently, in Langton v Trinidad and Tobago [2000] WL 544226, in which both limbs of
Vye were denied to the accused, the Privy Council took a far more generous approach than Lord
Taylor, and concluded that the jury should have been reminded that a man of previous good
character, who advanced the partial defence of provocation to murder, might be less likely to
indulge in very serious violence without first being severely provoked (as well as being directed
that it might bolster his credibility).
Similarly, in Paria v The Queen [2003] WL 1822938 the defendant, who had no previous
convictions, also claimed provocation in a triple murder case. Some positive evidence of his
good character was provided by witnesses testifying to the effect that he was normally a man of
equable temperament. However, the trial judge, mindful that the accused freely accepted that
he had committed three exceptionally violent manslaughters, decided not to give a second limb
propensity direction. On appeal, the Trinidad and Tobago Court of Appeal, following Langton,
concluded that it had been a mistake not to give the full second limb of the Vye direction, but
also decided that, given the inherent brutality of the crimes that he had admitted, the jury
would still inevitably have convicted the appellant of murder.

Do
D o you think
tthi
hinkk tth
that
hatt th
the d
defendant
effendant nP
d t iin Paria
aria
ia was a man off go
good
od
d ch
character?
haracter?
t ?

By contrast, the Privy Council concluded that the defect was not so minor that it could be
ignored, and substituted manslaughter verdicts for the murder convictions. Thus, it appears
that cases where provocation is advanced as a partial defence to a murder charge are not usually
amongst those in which a full Vye direction can properly be refused to someone without previ-
ous convictions, and that a failure to give such a direction will often be considered so serious
that it will make any ensuing conviction for murder unsafe.
R v Aziz [1995] 3 WLR 52, HL

D) WHAT IS GOOD CHARACTER?
Lord Steyn
The certified question, although phrased in very general terms, was intended to raise the problem
whether a defendant without any previous convictions may ‘lose’ his good character by reason of
other criminal behaviour. . . . A good starting point is that a judge should never be compelled to give
meaningless or absurd directions and cases occur from time to time where a defendant, who has
no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour
similar to the offence charged in the indictment. A sensible criminal justice system should not
compel a judge to go through the charade of giving directions in accordance with Vye e in a case
where the defendant’s claim to good character is spurious. I would therefore hold that a trial judge
has a residual discretion to decline to give any character directions in the case of a defendant
without previous convictions if the judge considers it an insult to common sense to give directions
in accordance with Vye. . . . That brings me to the nature of the discretion. Discretions range from
the open-textured discretionary powers to narrowly circumscribed discretionary powers. The
residual discretion of a trial judge to dispense with character directions in respect of a defendant
of good character is of the more limited variety. Prima facie the directions must be given. and the
judge will often be able to place a fair and balanced picture before the jury by giving directions in
accordance with Vye [1993] 1 WLR 471 and then adding words of qualification concerning other
proved or possible criminal conduct of the defendant which emerged during the trial. On the other
hand, if it would make no sense to give character directions in accordance with Vye, the judge may
in his discretion dispense with them. Subject to these views, I do not believe that it is desirable
to generalise about this essentially practical subject which must be left to the good sense of trial
judges.
The most complete and coherent guidance on good character directions is now set out in the
Court of Appeal judgment in R v Gray [2004] 2 Cr App R 30. In this case, a trial judge was held
to have improperly refused a full good character direction to the defendant in a murder case
who had convictions for driving with excess alcohol, no insurance and without a licence.
R v Gray [2004] 2 Cr App R 30, CA
Rix LJ
(1) The primary rule is that a person of previous good character must be given a full direction
covering both credibility and propensity. Where there are no further facts to complicate the
position, such a direction is mandatory and should be unqualified . . .

defendant bad character evidence in criminal cases 177
(2) If a defendant has a previous conviction which, either because of its age or its nature, may enti-
tle him to be treated as of effective good character, the trial judge has a discretion so to treat
him, and if he does so the defendant is entitled to a Vye
e direction . . . but
(3) Where the previous conviction can only be regarded as irrelevant or of no significance in rela-
tion to the offence charged, that discretion ought to be exercised in favour of treating the
defendant as of good character . . . In such a case the defendant is again entitled to a Vye
e direc-
tion. It would seem to be consistent with principle (4) below that, where there is room for uncer-
tainty as to how a defendant of effective good character should be treated, a judge would be
entitled to give an appropriately modified Vye e direction.
(4) Where a defendant of previous good character, whether absolute or, we would suggest,
effective, has been shown at trial, whether by admission or otherwise, to be guilty of criminal
conduct, the prima facie rule of practice is to deal with this by qualifying a Vye
e direction rather
than by withholding it . . . but
(5) In such a case, there remains a narrowly circumscribed residual discretion to withhold a good
character direction in whole, or presumably in part, where it would make no sense, or would be
meaningless or absurd or an insult to common sense, to do otherwise . . .
(6) Approved examples of the exercise of such a residual discretion are not common. . . . Lord
Steyn in Azizz appears to have considered that a person of previous good character who is
shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence
charged would forfeit his right to any direction (at 53B). On the other hand Lord Taylor C.J.’s
manslaughter/murder example in Vye e (which was cited again in Durbin) shows that even in the
context of serious crime it may be crucial that a critical intent separates the admitted criminal-
ity from that charged.
(7) A direction should never be misleading. Where therefore a defendant has withheld something
of his record so that otherwise a trial judge is not in a position to refer to it, the defendant may
forfeit the more ample, if qualified, direction which the judge might have been able to give . . .
3. Defendant Bad Character Evidence in

Criminal Cases
Introduction
Prior to the advent of the Criminal Justice Act 2003, the adduction of defendant bad character
evidence in criminal cases was governed by a complicated mixture of common law principles
and statute. Thus, evidence adduced to suggest guilt via propensity was largely ruled by the com-
mon law ‘similar fact’ doctrine. Evidence that was produced to undermine defendant credit was
primarily regulated by s. 1(3) of the 1898 Evidence Act (supplemented by common law provi-
sions). One of the main aims of the 2003 Act was to put all of the rules governing bad character
in criminal cases, whether for defendants, witnesses or third parties, and whether going to
credit or directly to the issue in a case, into a single statute. However, there were other concerns

about the old regime, several of which were explored in the Law Commission report, Evidence
of Bad Character in Criminal Proceedings which (in part) prompted the statutory reforms.
Evidence of Bad Character in Criminal Proceedings Law Commission

Report No 273, October 2001, Paras 1.3–1.7
1.3 Presently, evidence of misconduct of the defendant on an occasion other than that leading to
the charge may be introduced by the prosecution as evidence of ‘similar fact’ or by the prosecu-
tion or the co-defendant in the limited circumstances provided for by statute, principally under
section 1 of the Criminal Evidence Act 1898. Evidence of a person’s bad character may, however,
also be introduced by a defendant in respect of witnesses who are not co-defendants or in respect
of people who are not witnesses. The only limitation to this freedom is the requirement that the
evidence be ‘relevant’. We consider each of these instances of the introduction of evidence of bad
character. . . .
1.4 We are aware that some of those who are interested in this report may approach it by focus-
ing on the question: ‘Will this report, if carried into effect, result in a significant increase in the
number of occasions when fact-finders will be told about a defendant’s previous convictions?’ If
we had taken the approach of recommending that previous convictions should, as a rule, be pre-
sented to the fact-finders however marginally relevant they might be and regardless of how preju-
dicial they might be, or conversely, of recommending that they should never be adduced save
where it would be an affront to common sense to exclude them, then we might have been able to
answer such a question with confidence.
1.5 In our view we would have been mistaken to have taken either of these approaches. Their
apparently attractive simplicity ignores the complexity and variety of factual situations to which
they would have to apply. Each of them would run the risk of endangering the vital interests of the
individuals involved: whether defendant, complainant, witness, or investigator. The former would
run the risk of wrongful convictions based on prejudice rather than evidence which would be liable
to being overturned on appeal with consequential damage to the reputation of the criminal justice
system.
1.6 In our judgment, the question: ‘Should the fact-finders hear or not hear about the previ-
ous convictions of a defendant or a witness?’ is not, in practice, sensibly addressed as one of a
priori principle. Questions of admissibility of bad character arise in criminal trials daily, case by
case, affecting the vital interests of those involved. It is our view that those individuals deserve
that these important questions be decided by the careful and consistent application to each case
by the court of a structured process, which reflects the fact that often a person’s misconduct
will have significance for determining the matters in issue, but also recognises that fact-finders,
whether lay or professional, are susceptible, however much they may try to avoid it, to having
their good judgment either overborne or distorted by prejudice. Such a process requires that the
court, performing the exercise of balancing countervailing considerations, should be given suf-
ficient guidance to enable it to reach decisions which are consistent and, to an extent, predictable
but which focus on the judgment of the individual decision-taker who is in the best position to
make a sound judgment as to where the interests of justice lie.
1.7 The present law suffers from a number of defects which we identify in a late chapter of this
report. In summary, however, they constitute a haphazard mixture of statute and common law
rules which produce inconsistent and unpredictable results, in crucial respects distort the trial
process, make tactical consideration paramount and inhibit the defence in presenting its true case
to the fact-finder whilst often exposing witnesses to gratuitous and humiliating exposure of long
forgotten misconduct.

Abolition of the Common Law Rules

As a result of the Law Commission’s criticism (and that of other bodies), s. 99(1) of the Criminal
Justice Act 2003 abolished all existing common law rules governing the adduction of defend-
ant bad character evidence. Several statutes that were relevant to this area of the law, including
s. 1(3) of the 1898 Act, were also repealed (under Sch. 37, part 5 of the 2003 Act). Additionally,
the meaning of ‘bad character’ evidence is now the subject of statutory defi nition.
Definition of Bad Character

Under s. 98 of the 2003 Act, bad character is succinctly defined as ‘evidence of, or of a disposi-
tion towards, misconduct on his [a defendant’s] part’. Misconduct is further defined in s. 112 as
the commission of an offence or ‘other reprehensible behaviour’. The first part is simple enough
with regard to previous convictions and cautions, the latter being adduced in R v Weir and
Others [2006] 1 Cr App R 19. Unsurprisingly, s. 101(1) will also apply to foreign convictions in
many, though not necessarily all, situations: R v Kordasinski [2007] 1 Cr App R 17. However,
in appropriate circumstances, it also extends to evidence of offending where there has been no
conviction or even no previous charge.
In the pre-2003 Act case of R v Z [2000] 3 All ER 385 the House of Lords held that, in some
situations, if facts that amounted to a crime met the ‘more probative than prejudicial’ test for
similar fact evidence, they could be adduced as probative of guilt even if, at an earlier trial, the
defendant had been acquitted of an offence based on them. This fairly liberal approach has been
followed under the new statute.
Thus, in R v Edwards (Stewart) et al [2006] 2 Cr App R 4, the Court of Appeal held that
evidence of allegations made against a defendant, which would have supported counts in an
indictment that had been stayed as an abuse of process, could be admitted as evidence of bad
character under s. 101(1)(d) of the 2003 Act, as being capable of establishing a propensity to
commit the type of offence currently charged against the accused. In this case, the defendant
was accused of five counts of gross indecency with a child. Three further counts of rape, inde-
cency with a child, and indecent assault on a female had been stayed prior to trial, because the
police had written to the defendant several years earlier to say that no further action would be
taken against him in respect of them. Subsequently, evidence of the stayed incidents was admit-
ted at trial, and, on appeal, the defendant argued that such allegations, untested by a judicial
or quasi-judicial hearing, could not be evidence of bad character under s. 101. He relied on the
doubt expressed by Rose LJ in R v Bovell [2005] 2 Cr App R 401, as to whether the mere making
of an allegation was capable of being such evidence under s. 100(1) (see below).
However, the Court of Appeal observed that in Bovell doubt had been expressed in the con-
text of an allegation of wounding with intent made and then withdrawn by the victim against
the complainant. Additionally, s. 100 dealt with non-defendant bad character, whereas s. 101
addressed that of a defendant; different factors applied. In particular, the relevance of defend-
ant bad character depended on an assumption that it was true, the question as to whether it
was or not ultimately being determined by the jury. As a result, the court was persuaded that
the allegations in the instant case were capable of constituting evidence of bad character under
s. 101(i)(d), particularly in the light of s. 109(1).
Nevertheless, it is certainly not the case that the courts will invariably allow criminal allega-
tions that have not resulted in convictions to be adduced. Each case will turn on its own facts,

and it is likely that judges will be mindful of the warning given by Rose LJ in R v Hanson,
Gilmore and Pickering [2005] 1 WLR 3169 to the effect that: ‘Where past events are disputed the
judge must take care not to permit the trial unreasonably to be diverted into an investigation of
matters not charged on the indictment.’
R v Edwards (Stewart) & others [2006] 2 Cr App R 4, CA
Scott Baker LJ
The relevant underlying principle seems to us to be this. Prima facie all evidence that is relevant to
the question whether the accused is guilty or innocent of the offence charged is admissible. In R. v Z
[2000] 2 Cr.App.R. 281 it was accepted by the defendant that the evidence of the three complainants
in respect of whose complaints he had been acquitted was relevant to the question whether he was
guilty of the offence of rape with which he had been charged. The issue was not whether the defend-
ant was guilty of having raped the three other complainants; he was not being put on trial again for
those offences. The only issue was whether he was guilty of the fresh allegation of rape. Lord Hope of
Craighead said at p. 283 that the guiding principle was that prima facie all evidence which is relevant
to the question whether the accused is guilty or innocent of the offence charged is admissible. . . . If
evidence of previous allegations is in principle admissible notwithstanding that the accused was
acquitted of charges based on those allegations in a previous trial, it is difficult to see why in principle
evidence relating to allegations that have never been tried (i.e. because of a stay for abuse of pro-
cess) should not be admissible. The defendant’s protection comes through the judge’s discretion
under s. 101(3) or, in an appropriate case, through s. 78 of the Police and Criminal Act 1984.
It should also be noted that s. 108(2) provides that for defendants accused of offences commit-
ted when over the age of 21, convictions that they accrued while still under 14 years old are not
admissible, unless both the offences are triable only on indictment (ie are very serious matters)
and the court is satisfied that the ‘interests of justice require the evidence to be admissible’. Thus,
if a 22-year-old is accused of murder, a conviction for the same offence when he was 13 might be
admitted if justified under one of the other provisions of the 2003 Act, provided the court felt
that it was in the interests of justice to do so. By contrast, convictions for offences such as theft,
accrued while under the age of 14, cannot be adduced under any circumstances once the accused
is over 21.
‘Reprehensible Behaviour’
The meaning of ‘reprehensible behaviour’ poses greater difficulties. The Law Commission
suggested that the best test for this would be to ask whether a reasonable man would disapprove
of the conduct in question (at clause 1(b) of its draft bill). To some extent, this reflects the view
of Stephenson LJ, in R v Bishop [1975] QB 274, that imputations on character (under s. 1(3)(ii) of
the now repealed 1898 Evidence Act) included allegations of ‘faults or vices, whether reputed or
real, which are not criminal offences’. He suggested that what constituted a vice would be
governed by contemporary social mores, as reflected in the average juryman. In the 1970s,
Bishop indicated that this could include an allegation of homosexuality, although, by then, this
was legal behaviour.


Do you think that homosexuality would be considered reprehensible behaviour in the
mo
ode
dern e
modern ra??
era?
It seems that a broadly similar approach to that suggested by the Law Commission is being fol-
lowed under the 2003 Act. However, their definition did not form part of the statute as enacted,
and there are a number of inherent problems in the new provision. For example, it has been
observed that the word ‘reprehensible’ is redolent of another age, and not easy to interpret in
a modern, multi-value, society. Does it extend to matters such as wife-swapping, recreational
‘dogging’, bondage sessions, excessive gambling, private drunkenness, possession of (adult)
pornography, Satanism, etc?4
In these circumstances, it is, perhaps, worth remembering Lord Hailsham’s observation
(made in another context), that it is important that judges stay close to current social mores:
Boardman v DPP [1975] AC 421. Nevertheless, Lord Hailsham still assumed that, although val-
ues might change in society, there would still be some kind of consensus of opinion as to what
was considered abnormal (and so, perhaps, wrong). Some might question whether this is still
always the case. Happily, decided cases now provide a modest degree of elucidation as to what
is meant by ‘reprehensible’.
In R v Weir and Others [2006] 1 Cr App R 19, the Court of Appeal upheld a decision to allow
evidence to be adduced pursuant to s. 101(1)(d), along with other gateways, from two women
alleging that they had been subjected to sexually charged approaches and manipulation, at a
vulnerable time in their lives, by a priest at their Hindu Temple, even though these had not
resulted in any crimes. In the instant case, the priest was charged with raping another of his
congregation, following similar approaches.
By contrast, in another of the conjoined appeals in Weir, it was held that an earlier consensual
sexual relationship with a ‘normal’ (rather than physically or emotionally immature) 16-year-
old girl, on the part of a man of 34, did not amount to misconduct, or a propensity towards
misconduct, where the defendant was accused of an indecent assault on a 13-year-old girl.
Nevertheless, in this case, the Court of Appeal left open the possibility of his behaviour being
viewed as ‘reprehensible’ if the accused man had ‘groomed’ her for such a relationship prior to
her turning 16 or (perhaps less obviously) if he was aware that her parents strongly disapproved
of the relationship. The court was clearly influenced in its decision by the fact that the couple
could, in theory, quite legally have got married.

Do
D o you feel
f l th
that
att iitt iiss repreh
reprehensible
hensib
iblle ffor a 3
34
34-year-old
4 -year-old
ld man tto d
date
atte a 1
16
16-year-old?
6 -year-old
ld??
Similarly, in R v Edwards (Stewart) et al [2006] 2 Cr App R 4, it was held that a first instance
judge, presiding over a drugs case, had been wrong to allow a defendant to be cross-examined
about his quite legal possession of an antique, but functional, Derringer firearm (for which
no licence was required because of its age). Such legitimate possession could not amount to
4
R Munday, ‘What Constitutes “Other Reprehensible Behaviour” Under the Bad Character Provisions of the
Criminal Justice Act 2003’ [2005] Crim LR, 24–43.

evidence of misconduct. Against this, in R v Saleem [2007] EWCA Crim 1923, it was held that
the appellant’s possession of a considerable number of downloaded photographs of the victims
of violent street assaults (he was accused of a similar crime of violence himself) were capable of
being considered as ‘reprehensible behaviour’.

Is this different to a gangster being in possession of large amounts of very violent and interactive
computer
comp puter games?
games?
As will be seen when s. 100 is considered, making demonstrably false allegations to have been
the victim of a serious sexual crime might also be viewed as reprehensible behaviour. However,
in R v Osbourne [2007] Crim LR 712, it was considered relevant when deciding that severe ver-
bal abuse towards a former partner was not reprehensible behaviour that it was motivated by
concern about the welfare of the child the defendant had had by her.
Although it is not easy to draw general principles from these decisions, it seems that if some-
thing is legal and would be approved of, or at least accepted, by a significant section (albeit a
minority) of the population, such as an early middle-aged man having intimate relations with
a 16-year-old female, the courts will be reluctant to view it as coming within the definition of
‘reprehensible’, even if some people might view the conduct as abhorrent. However, if behaviour
is legal but very widely (if not universally) viewed as ‘bad’, such as a minister of religion abusing
his position to make predatory sexual advances towards vulnerable members of his congrega-
tion, it might then be considered ‘reprehensible’.
Disposition
The definition includes evidence of a ‘disposition’ towards misconduct; this will, presum-
ably, extend to matters such as the possession of literature advocating paedophile behaviour
or describing how to seduce children; additionally, of course, it would include pornographic
literature of this type, as in R v Lewis [1982] 76 Cr App R 33 (though this would, in any event,
constitute an offence). It would also include literature on how to create a bomb or perpetrate
terrorist acts or other crimes.
It was not initially obvious how behaviour that is probative, but which, arguably, does not
necessarily constitute ‘misconduct’, such as consensual sexual relations of an unusual type,
as in R v Butler [1986] 84 Cr App R 12, would be treated after the 2003 Act came into force.
Although these were governed by similar fact principles prior to the advent of that statute, they
would not appear to fall within the parameters of s. 98.
It seems that they are now governed by general principles of relevance (it would be absurd
to preserve a special similar fact doctrine in criminal cases that was confined to such matters).
Such an analysis is supported by Weir, in which the Court of Appeal concluded that although
evidence of previous sexual relations with a 16-year-old did not constitute ‘reprehensible
behaviour’ on the part of the 34-year-old man, it was, nevertheless, still admissible under com-
mon law principles as relevant to demonstrating his sexual interest in young girls, and, in the

circumstances of the case, the admission of such evidence would not be unfair under s. 78 of the
Police and Criminal Evidence Act 1984.
Part of the Offence Itself

It should be noted that s. 98 expressly excludes from the ambit of bad character evidence mater-
ial that ‘has to do with the alleged facts of the offence with which the defendant is charged’
and also evidence of ‘misconduct in connection with the investigation or prosecution of that
offence’. Thus, and unsurprisingly, evidence can be admitted about aspects of the case before
the court, however reprehensible; for example, the gratuitous violence shown towards victims
during a robbery. Additionally, it will cover matters such as attempts to intimidate witnesses
during the investigation following the commission of a crime. In R v Edwards (Stewart) and oth-
ers [2006] 2 Cr App R 4 Scott Baker LJ stressed that courts should always consider whether these
provisions applied before deciding whether a statutory ‘gateway’ was necessary and available to
allow the adduction of evidence of misconduct.
The issue was further considered in R v Saleem [2007] EWCA Crim 1923, where the Court of
Appeal concluded that a defendant’s rap lyrics, made some months before the incident which
had resulted in his trial for a serious crime of violence, and suggesting that he may have been
interested in carrying out such an attack, did not constitute part of the offence for the purposes
of s. 98, as they were not sufficiently connected in time that they were ‘to do with the alleged
facts of the offence’, given the date when they were written.
Similarly, in R v Tirnaveanue [2007] 2 Cr App R 23, a lack of a sufficient nexus in time between
the evidence that the prosecution wished to adduce, and the offence with which the accused
was charged, prevented the defendant’s dealings with other would be immigrants from being
adduced as part of the offence before the court. He was accused of posing as a solicitor in order
to obtain money dishonestly from people seeking to enter the UK, and also with providing
those people with forged entry documents (though the evidence of other incidents was held to
be properly admissible bad character evidence under s. 101(1)(d) of the 2003 Act).
R v Tirnaveanue [2007] 2 Cr App R 23, CA
Thomas LJ
The contention of the prosecution was that the evidence was ‘to do’ with the offences with which
the appellant was charged. The consequence of that argument was that, if the evidence was within
the exclusion, then it was not for the purposes of the statutory provisions evidence of bad char-
acter and, as this court said in Edwards and Rowlands (at [1(i)]) (as qualified in R. v Watson [2006]
EWCA Crim 2308 at [19]), the evidence ‘may be admissible without more ado’.
There is very little authority on the extent of this exclusion. In R. v Machado [2006] EWCA Crim
837, the defendant charged with robbing a victim wished to use evidence that the victim had taken
an ecstasy tablet shortly before the attack and immediately before the attack had offered to sup-
ply him drugs. This court held that the matters were in effect contemporaneous and so closely
connected with the alleged facts of the offence, and so were ‘to do’ with the facts of the offence.
In Edwards and Rowlands, this court observed at [23] that the term was widely drawn and wide
enough to cover the finding of a pistol cartridge at the home of one of the defendants when it
was searched in connection with the drugs offences with which the defendants were charged.

In R. v McKintosh [2006] EWCA Crim 193, this court held that a matter immediately following the
commission of the offence was ‘to do with the offence’. In Watson , an assault committed was held
to do with the charge of rape committed upon the same person later in the day. Professor J.R.
Spencer, Q.C. in his useful monograph, Evidence of Bad Characterr at para. 2.23 suggested that
it clearly covered acts which the defendant committed at the same time and place as the main
offence and presumably covered acts by way of preparation for the main offence and an earlier
criminal act which was the reason for the main crime.
23 The basis on which it was contended before us by the prosecution that the evidence which
they sought to adduce was ‘to do’ with the facts of the alleged offence was that it was evidence
which was central to the case in that it related to proving that the appellant was the person who
had committed the offences charged in the various counts. We do not accede to that submission.
As counsel for the prosecution accepted, if his submission was right, then in any case, where the
identity of the defendant was in issue (including, by way of example, cases of sexual misconduct),
the prosecution would be able to rely on this exclusion to adduce evidence of misconduct on other
occasions which helped to prove identity. It seems to us that the exclusion must be related to evi-
dence where there is some nexus in time between the offence with which the defendant is charged
and the evidence of misconduct which the prosecution seek to adduce. In the commentary in the
Criminal Law Review to R. v T [2006] EWCA Crim 2006; [2007] 1 Cr. App. R. 4 (p.43); [2007] Crim. L.R.
165 , it was argued that the court in Machado and McKintosh had taken too narrow a view of s. 98
thereby permitting prejudicial evidence to be admitted on the threshold test of relevance alone
with no gateway having to be satisfied. We do not agree—the application of s. 98 is a fact-specific
exercise involving the interpretation of ordinary words.
24 We respectfully agree with Professor J.R. Spencer, Q.C. Evidence of Bad Characterr at para.
2.23, where he suggests that there is a potential overlap between evidence that has to do with the
alleged facts of the offence and evidence that might be admitted through one of the gateways in
s. 101(1).
The Seven Gateways for Bad Character Evidence

Outside the ambit of s. 98, defendant bad character can only be adduced if it falls within one
of the seven ‘gateways’ set out in s. 101 of the 2003 Act, though, in appropriate cases, it may
be admissible through several of them simultaneously. If bad character evidence is wrongly
admitted through one gateway, but would have been admissible through another, it will not
necessarily make an ensuing conviction unsafe. However, in R v M [2007] Crim LR 637, the
Court of Appeal noted that this would not be the case where evidence had been improperly
admitted under one limb of s. 101, such as s. 101(1)(d), but which could have been legitimately
admitted under another, such as s. 101(1)(g), if the defence case might have been conducted
differently, and the jury instructed in a very different manner as to how they should use the
previous conviction, and why it had been adduced, had it been initially admitted under the
correct limb at trial.
The s. 101 gateways came into force on 15 December 2004, being effective for all trials that
began after that date: R v Bradley [2005] 1 Cr App R 24. Late amendments, an extremely brief set
of ‘Explanatory Notes’ (which are not, of course, binding on the courts in any event), a relatively
succinct statutory provision, and significant departures from the draft Bill suggested by the
Law Commission (despite government claims that its legislation had been ‘closely informed’ by
the Commission’s 2001 Report), meant that initially there was considerable uncertainty as to

how the new section would operate.5 Fortunately, a considerable body of appellate cases inter-
preting the provision now provide flesh to the bare statutory bones of the section.
Section 101 of the Criminal Justice Act 2003, Defendant’s bad

character
(1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only
if—
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a question
asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the
prosecution,
(e) it has substantial probative value in relation to an important matter in issue between the
defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
(2) Sections 102 to 106 contain provision supplementing subsection (1).
(3) The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the
defendant to exclude it, it appears to the court that the admission of the evidence would have
such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(4) On an application to exclude evidence under subsection (3) the court must have regard, in
particular, to the length of time between the matters to which that evidence relates and the
matters which form the subject of the offence charged.
Section 101(1)(a)–(b)
Some of the gateways contained in s. 101 are relatively uncontroversial, and can be dealt with
swift ly. Thus, under s. 101(1)(a) defendant bad character evidence can be admitted with the
agreement of ‘all parties to the proceedings’. For practical purposes, in most situations, this will
be contingent on the accused person wishing to adduce it, although, presumably, there might be
exceptional circumstances in which a co-accused might object to its admission. Nevertheless,
a defendant could then have recourse to s. 101(1)(b), which allows him to adduce such evidence
in person or via an answer to a question ‘asked by him in cross-examination and intended to
elicit it’.
Section 101(1)(c)
Section 101(1)(c), in part, replicates a specialist provision that previously existed at common
law. It allows the adduction of a defendant’s previous misconduct if it is ‘important explanatory
5
Explanatory Notes to the Criminal Justice Act 2003, para. 46.

evidence’. Guidance on what is meant by this is given in s. 102, which provides that it can
be admitted if, without it, the jury or court would find it ‘impossible or difficult properly to
understand other evidence in the case’ and (rather superfluously) its value for understanding
the case as a whole is ‘substantial’. As a result, it is apparent that this provision will replace
the common law rules established in cases such as R v Fulcher [1995] 2 Cr App R 251 and R v
Anthony Sawoniuk [2000] 2 Cr App R 220. These held that where it is necessary to place evi-
dence before the jury of a background or history that was relevant to an offence charged in the
indictment, and without which the account would be incomplete or incomprehensible, the fact
that it included evidence establishing the commission of an offence with which the accused was
not currently charged was not, of itself, a ground for excluding the evidence.
Thus, in Sawoniuk, the appellant was accused of two counts of murdering Jews in the town
of Domachevo in wartime Belarus; evidence of his criminal acts against other Jews as part of a
German allied police unit was admitted, not as ‘similar fact’ evidence, but because it was rele-
vant to prove that he was involved in other violent wartime search operations in which Jews
were his targets, and so made sense of the incident that formed the basis of the indictment. Of
course, there are dangers that this doctrine could be extended too far, to allow in prejudicial
material that should properly be excluded. However, this is a risk that the Court of Appeal
appears to be alert to: R v Dolan [2003] Crim LR 41.
R v Anthony Sawoniuk [2000] 2 Cr App R 220, CA
Bingham CJ
Mr Clegg now submits to us that this evidence, relating to criminal acts against Jews other than
the victims in counts 1 and 3, should have been excluded. He suggests that the appellant’s mem-
bership of a group participating in the search and kill operation was not disputed. This evidence
was not probative of his identity as the killer in counts 1 and 3. There were no special features of
the case to justify the admission of this evidence, and there was nothing in the circumstances of
this case or the evidence to bring it within the special and circumscribed exception relating to
evidence of similar facts. . . . For the Crown it is argued that this evidence was admissible but not
as evidence of similar facts. It was relevant to prove that the appellant was a policeman involved
in the search and kill operation. It was not the criminal nature of his conduct which made the evi-
dence admissible, but the fact that it identified him as a member of the group to which the killer in
counts 1 and 3 belonged. Thus the effect of the evidence was to identify the appellant as one of
the possible killers. The evidence did not identify him, but it supported the identification of the eye
witnesses. The evidence was called to prove not the appellant’s propensity for misconduct but his
participation in a police operation of which the counts of the indictment were a part.
We would accept Sir John’s submissions. But we incline to the view that the admission of this
evidence could be upheld on a broader basis. Criminal charges cannot be fairly judged in a factual
vacuum. In order to make a rational assessment of evidence directly relating to a charge it may
often be necessary for a jury to receive evidence describing, perhaps in some detail, the context
and circumstances in which the offences are said to have been committed. This, as we under-
stand, is the approach indicated by this Court in Pettman, May 2, 1985 (unreported), approved
in Sidhu (1994) 98 Cr. App. R. 59 at 65 and Fulcher [1995] 2 Cr. App. R. 251 at 258: ‘Where it is
necessary to place before the jury evidence of part of a continual background of history relevant
to the offence charged in the indictment and without the totality of which the account placed
before the jury would be incomplete or incomprehensible, then the fact that the whole account
involves including evidence establishing the commission of an offence with which the accused

is not charged is not of itself a ground for excluding the evidence.’ This approach seems to us
of particular significance in an exceptional case such as the present, in which a London jury was
asked to assess the significance of evidence relating to events in a country quite unlike our own,
taking place a very long time ago in the extraordinary conditions prevailing in 1941 to 1942. It
was necessary and appropriate for the Crown to prove that it was the policy of Nazi Germany
first to oppress and then to exterminate the Jewish population of its conquered territories in
Eastern Europe. This was done by expert evidence, which was very largely unchallenged. No
objection was taken to this evidence. But it was not the subject of any formal admission. It was
next necessary and appropriate for the Crown to establish that locally recruited police in areas
which included Belorussia and Domachevo played a significant part in enforcing the Nazi policy
against the Jewish population. This was proved, partly by expert evidence and partly by the oral
evidence of eye witnesses. There was no objection to this evidence, but nor was there any formal
admission, and when in due course the appellant gave evidence he contradicted this salient fact.
It was next necessary and appropriate for the Crown to prove that the appellant was a member
of the local police in Domachevo. By the date of trial this was admitted. But the appellant had
earlier denied it in interview, and when he gave evidence the police force which he described was
in important respects different from that described in the Crown evidence. It was necessary and
appropriate for the Crown to prove that the appellant, as a locally recruited policeman, played
a leading and notorious role in enforcing Nazi policies against the Jews in Domachevo. This was
not admitted, and when in due course the appellant gave evidence he strongly denied it. It was
necessary and appropriate for the Crown to prove that, following the massacre of September 20,
1942 (in which the appellant personally was not said to play any part), the locally recruited police
in Domachevo, including the appellant, engaged in an operation to hunt down and execute any
Jewish survivors of the massacre. This was strongly denied. The Crown had to satisfy the jury that
the killings on which counts 1 and 3 were based took place: given the nature of his defence, the
appellant did not admit that these events took place at all, but it was plainly incumbent on the
Crown to satisfy the jury that they did. Lastly, of course, and crucially, the Crown had to satisfy
the jury that the appellant committed the murders specified in counts 1 and 3, which formed part
of the post-massacre operation carried out by local police. It seems to us that evidence relevant
to all these matters was probative and admissible, even if it disclosed the commission of criminal
offences, other than those charged, by the appellant and his colleagues. It has not been sug-
gested that the jury should have been invited to reach a verdict on counts 1 and 3 having heard
no more than the evidence of a single eye witness on each; had these gruesome events not been
set in their factual context, the jury would have been understandably bewildered.
That s. 101(1)(c) puts the analysis in Sawoniuk into statutory form appears to have been tacitly
supported by R v Edwards (Stewart) and others [2006] 2 Cr App R 4, in which the Court of
Appeal concluded that a trial judge had rightly held that evidence of allegations of an earlier
rape and acts of indecency committed against a child by the defendant, which were similar to
the counts on an indictment, could not be admitted as important explanatory evidence under
s. 101(1)(c), though properly admitted under s. 101(1)(d) (see below). Similarly, the same forum
made clear in R v Ifzal Iqbal [2006] EWCA Crim 1302 that a defendant’s previous convictions
for drugs offences could not be adduced under s.101(1)(c) to explain why his DNA might have
been found on packets containing drugs; this was again the province of s. 101(1)(d).
Nevertheless, it should be stressed that the operation of s. 101(1)(c) is certainly not confi ned
to cases like Sawoniuk. It goes much further. For example, in R v Edwards (Karl) and others
[2006] 1 Cr App R 3 it was held that an important identification witness who had recognized
the accused as he ran past her in the street, while he was fleeing from a crime scene, because she

had regularly purchased heroin from him on earlier occasions, should be allowed to reveal this
aspect of the defendant’s bad character pursuant to s. 101(1)(c). It was important explanatory
evidence in relation to her identification, the strength of which was vital to the case.
Cross-reference Box
Identifications, especially those made in ‘fleeting encounter’ cases, are governed by the very strict
rules set out by the Court of Appeal in the case of R v Turnbulll [1977] QB 224. These were intro-
duced
duce
du ced following
d fo
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about
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extensive previous dealings was obviously of great importance in bolstering it. For more informa-
tion on the Turnbull guidelines, see pp. 539–552.
Similarly, in an unreported Crown Court case, where a woman, who was very familiar with her
abductor/rapist’s bad record for calculated and severe criminal violence, had made no attempt
to escape from her captor, in circumstances where it might otherwise have been expected, his
previous convictions were adduced as important explanatory evidence under s. 101(1)(c). They
would explain an otherwise strange piece of evidence (her failure to avail herself of possible
escape opportunities).
By contrast, in R v Osbourne [2007] Crim LR 712, the defendant was accused of murdering
a close friend, in the latter’s flat. At trial, evidence was given by a former partner of the accused
man to the effect that, when he failed to take the medicine that normally controlled his schizo-
phrenia, he could suddenly snap and shower her with verbal abuse, though he was never physi-
cally violent. The trial judge ruled that this was evidence of bad character, and so admissible
under s. 101(1)(c) as important explanatory evidence. (The appellant had not been taking his
medicine at the time of the murder.) However, the Court of Appeal held that, in the context of a
brutal murder, the earlier verbal abuse did not amount to ‘reprehensible behaviour’, and, in any
event, was not important explanatory evidence and so admissible under s.101(1)(c) (though the
conviction was held to be safe on the evidence).
It should, perhaps, also be noted that in R v Edwards (Stewart) and others [2006] 2 Cr App R 4,
Scott Baker LJ expressly observed that there might be situations in which it would be difficult to
decide whether evidence of bad character was part of the offence itself under s. 98 (and so exempt
from requiring a gateway), or whether it might not more properly be adduced under s. 101(1)(c).
R v Ifzal Iqbal [2006] WL 163 4992, CA
Diehl H
Gateway (c): ‘Important explanatory evidence’. This has to be considered in the light of section 102
of this Act also, which is in these terms: ‘For the purposes of section 101(1)(c) evidence is import-
ant explanatory evidence if—(a) without it, the court or jury would find it impossible or difficult
properly to understand other evidence in the case, and (b) its value for understanding the case as
a whole is substantial.’ The respondent has argued before us that the previous convictions con-
stituted important explanatory evidence of the manner in which the appellant’s DNA came to be
found on one of the knotted packages: that is to say, to show that he was in possession of the drugs

and not, as was his case, that the DNA came to be there innocently. It is clear to us that gateway (c)
did not apply to this situation but that the respondent’s argument should really have been directed
to gateway (d). The previous convictions were said to be relevant to an important matter in issue
between the appellant and prosecution: that is to say whether the appellant was in possession of
these drugs on 26th January. The learned judge did not rule that these two previous convictions
were admissible through gateway (d). If he had been minded to do so then clearly exclusion under
section 101(3) would have had to be considered.
Section 101(d)–(g): Introduction

The most problematic gateways will be the four established by sub-ss. 101(1)(d)–(g). Of these,
the most significant for the prosecution are: s. 101(1)(d), where character evidence is relevant to
an important matter in issue between the defendant and the prosecution; s. 101(1)(f), where the
evidence is adduced to correct a false impression given by the defendant, and s. 101(1)(g), where
the defendant has made an attack on the character of another person. The use of s. 101(1)(e) is
limited to co-defendants.
Under the old (pre-2003 Act) regime on defendant bad character evidence it was possible to
make a rough and ready division between those provisions that allowed bad character evidence
to be adduced which went directly to the issue of defendant guilt (such as the old similar fact
doctrine), and those in which it went primarily to the issue of credibility (such as s. 1(3)(ii) of
the 1898 Evidence Act). As a result, generally speaking, a trial judge who allowed evidence of
bad character to be adduced, because the defendant had, for example, cast ‘imputations’ on a
prosecution witness, would have to instruct jurors, when summing up, that evidence of the
defendant’s bad character (usually his previous convictions) merely went to the issue of credit,
it did not go directly to the issue of his guilt (ie it was not to be used as propensity evidence).
The 2003 Act did not expressly identify the purpose for which bad character evidence admit-
ted under any one of the gateways in s. 101 could be adduced. It did not make clear, for example,
whether evidence adduced after an accused had made an ‘attack’ on another person’s character,
pursuant to s. 101(1)(g), would also be treated as going purely to credit (though its explana-
tory notes suggested that this would not necessarily be the case). However, its advent followed
criticism from Lord Auld (amongst others) of the artificiality of directing juries that, in some
situations, convictions went only to credibility and not propensity, as occurred under the old
regime. Perhaps as a result, in a significant departure from the old system, case law since the
2003 Act came into force indicates that the former approach will not necessarily be followed.
In R v Highton and others [2005] 1 WLR 3472, the Court of Appeal concluded that the use to
which bad character evidence could be put depended on the matters to which it was relevant,
after being adduced, rather than being entirely dependent on the gateway through which it
had been admitted. Although, as the same forum also noted in R v Edwards (Karl) and others
[2006] 1 Cr App R 3, relevance might be influenced by the gateway through which bad character
evidence had reached the trial, it would not invariably be decisive of the issue, especially with
regard to s. 101(1)(g). (It should, perhaps, also be observed that the traditional rationale behind
adducing such evidence under the old s. 1(3)(ii) ‘second limb’ was never entirely clear, and had
been questioned by the Law Commission.)
As a result, in Highton, although the defendant’s previous convictions had been admitted
under s. 101(1)(g), because he had made an attack on another person’s character, the Court of
Appeal upheld the trial judge’s decision to give a propensity direction on the potential use of

the accused man’s previous convictions for violence and dishonesty, where he was currently
accused of kidnapping, robbery and theft. Of course, much will turn on the circumstances of
the individual case. For the purposes of exposition, the four provisions in s. 101(1)(d)–(g) will
be dealt with, in detail, in turn.
R v Highton [2005] 1 WLR 3472, HL
Lord Woolf CJ
The argument before us was as follows: as subsection 101(1)(d) is the only gateway that is referred
to in s. 103(1), the reference it contains to propensity makes it clear that it is only if the evidence
is admitted under s. 101(d) that bad character evidence can be used to show a propensity on the
part of the defendant to commit the offences of which he is charged or a propensity to be untruth-
ful. In our view, however, the force of this argument is diminished for a number of reasons. First,
s. 103(1) prefaces s. 103(1)(a) and (b) with the word ‘include’. This indicates that the matters in issue
may extend beyond the two areas mentioned in this sub-section. More importantly, while this
argument can be advanced in relation to s. 101(1)(d), it can also be advanced in respect of the other
parts of sub-section (1), in particular in relation to s. 101(1)(a) and (b). In addition, s. 101(1) itself
states that it is dealing with the question of admissibility and makes no reference to the effect that
admissible evidence as to bad character is to have. We also consider that the width of the definition
in s. 98 of what is evidence as to bad character suggests that, wherever such evidence is admitted,
it can be admitted for any purpose for which it is relevant in the case in which it is being admitted.
We therefore conclude that a distinction must be drawn between the admissibilityy of evidence of
bad character, which depends upon it getting through one of the gateways, and the use e to which it
may be put once it is admitted. The use to which it may be put depends upon the matters to which it
is relevant rather than upon the gateway through which it was admitted. It is true that the reason-
ing that leads to the admission of evidence under gateway (d) may also determine the matters to
which the evidence is relevant or primarily relevant once admitted. That is not true, however, of
all the gateways. In the case of gateway (g), for example, admissibility depends on the defendant
having made an attack on another person’s character, but once the evidence is admitted, it may,
depending on the particular facts, be relevant not only to credibility but also to propensity to com-
mit offences of the kind with which the defendant is charged.
Section 101(1)(d)
At common law, evidence of a defendant’s bad character was revealed to a tribunal of fact as
being directly indicative of guilt in only strictly limited circumstances, some understanding
of which is necessary to make sense of the new Act. This general restriction on the adduc-
tion of such evidence only went back to the late eighteenth century. Indeed, the exclusionary
rule against adducing bad character evidence, to which the ‘similar fact’ doctrine eventually
emerged as an exception, only fully developed after 1800, and was first hinted at as late as 1762
(by Sir Michael Foster, in his treatise on Crown Law). Prior to that time, for example in the
1720s, as the visiting Frenchman Cesar de Saussure noted of the Old Bailey, if a witness was
called to give evidence that the accused was a person of: ‘. . . bad antecedents, and suspected of
such and such a bad action, he will be listened to with attention’. Th is can also be seen by con-
sidering details from individual trials conducted at that court in the early modern period.

Old Bailey Sessions Papers, 24 February 1686, Trial of George Cliff

George Cliff, indicted for stealing from, and defrauding one Brewer of a Basket value 6 d. and half
a Bushel of Apples, value 2 s. and 10 s. in Money, on the 7th of December, it was proved that Cliff
coming to one Lovejoys house, demanded of the Maid Servant a Basket, which she delivered him
he carryed away, which Cheat being at length found out, and he appearing to be an Old Offender
saying little for himself was brought in Guilty.
As these cases suggest, it has always been accepted that most propensity evidence was excluded
at common law, under the late eighteenth/early nineteenth century exclusionary rule, not
because it was ‘irrelevant’ (though sometimes this might be the case) but because of its potential
to produce both reasoning and moral prejudice against the accused.
By the nineteenth century, it was a basic principle of English law that simply because someone
had been guilty of wrongdoing in the past, or had an unusual character trait, this should not nor-
mally be used to advance a prosecution case against them. Thus, in the leading case of Makin v
Attorney-General for New South Wales [1894] AC 57 Lord Herschell LC noted that: ‘It is undoubt-
edly not competent for the prosecution to adduce evidence tending to show that the accused
has been guilty of criminal acts other than those covered by the indictment for the purpose of
leading to the conclusion that he is a person likely, from his criminal conduct or character, to
have committed the offence for which he is being tried.’ Such an approach was later termed the
‘forbidden line of reasoning’ by Lord Hailsham in the case of Boardman v DPP [1975] AC 421.
Nevertheless, even as the general exclusionary rule hardened, an exception emerged whereby
evidence of bad character could be admitted, in rare cases, in the form of the now abolished
(in criminal matters), and misleadingly named, ‘similar fact’ doctrine. This allowed previous
bad conduct to be adduced, provided, as Lord Salmon observed in Boardman, that the evidence
was capable of persuading a reasonable jury of the defendant’s guilt on some ground other than
his general bad character and general disposition to commit the sort of crimes with which he
was presently charged. This might be, for example, because it rebutted a specific defence being
advanced by the accused man, showed a highly singular and unusual modus operandi or had
major probative value for some other reason. Defining the stringent (and rare) circumstances
in which the similar fact exception operated vexed the higher courts throughout the twentieth
century. The leading case on criminal similar fact evidence, at the time of abolition, was DPP v
P [1991] 2 AC 447.
DPP v P [1991] 2 AC 447, HL
Lord Mackay
From all that was said by the House in Reg. v. Boardman I would deduce the essential feature of evi-
dence which is to be admitted is that its probative force in support of the allegation that an accused
person committed a crime is sufficiently great to make it just to admit the evidence, notwithstand-
ing that it is prejudicial to the accused in tending to show that he was guilty of another crime.
Such probative force may be derived from striking similarities in the evidence about the manner
in which the crime was committed and the authorities provide illustrations of that of which Reg. v.
Straffen [1952] 2 Q.B. 911 and Rex v. Smith (1915) 11 Cr.App.R. 229, provide notable examples. But
restricting the circumstances in which there is sufficient probative force to overcome prejudice

of evidence relating to another crime to cases in which there is some striking similarity between
them is to restrict the operation of the principle in a way which gives too much effect to a particular
manner of stating it, and is not justified in principle. . . . In the present case the evidence of both girls
describes a prolonged course of conduct in relation to each of them. In relation to each of them
force was used. There was a general domination of the girls with threats against them unless they
observed silence and a domination of the wife which inhibited her intervention. The defendant
seemed to have an obsession for keeping the girls to himself, for himself. The younger took on the
role of the elder daughter when the elder daughter left home. There was also evidence that the
defendant was involved in regard to payment for the abortions in respect of both girls. In my view
these circumstances taken together gave strong probative force to the evidence of each of the
girls in relation to the incidents involving the other, and was certainly sufficient to make it just to
admit that evidence, notwithstanding its prejudicial effect.
During the late twentieth century there was a widespread (though far from universal) feeling
that the common law and statutory exceptions to the general exclusionary rule on bad character
evidence were inadequate, and meant that the tribunal of fact was often denied highly cogent
material about defendants’ histories, potentially occasioning injustice. There were a number of
causes célèbres, involving very serious crimes, such as paedophile murder, in which juries were
denied access to what many would consider was vital information about a defendant’s previous
criminal history (such as previous attacks on children). Additionally, the law appeared to be
illogical, judges directing juries that they should consider a defendant’s good character as going
towards his innocence (the Vye direction), but only rarely that his bad character went towards
guilt.
Furthermore, there were a number of practical problems associated with the old regime. For
example, juries, and even more so, magistrates, would rapidly guess that a failure to mention
good character in a defendant probably indicated a bad one, encouraging them to speculate as
to what this might be. As a result, it was argued by the Law Commission and other bodies that
they should be replaced by a new statutory regime.
The replacement for the similar fact regime (inter alia) is found in s. 101(1)(d), which provides
that evidence of misconduct can be adduced, by the prosecution alone (a limitation imposed by
s. 103(6) of the Act), if relevant to an ‘important matter in issue between the defendant and the
prosecution’. This phrase is given clarification in s. 103(1)(a), which provides a non-exhaustive
description of such ‘matters’. Significantly, these include, inter alia, the question as to whether a
defendant has a ‘propensity to commit offences of the kind with which he is charged’.
Under s. 103(2) (non-exhaustive) guidance is also given on how a defendant’s propensity
under s. 103(1)(a) can be established; namely, by adducing evidence that he has been convicted
of offences of the same ‘description’ or ‘category’ as those charged. The former encompasses
crimes in which the terms of the indictment for the earlier offence are the same as that sub-
sequently charged (for example, a murder conviction and a murder charge). The latter covers
situations in which the earlier conviction is listed in the same designated category as that
charged.
So far, just two such categories have been established, though others may follow. The Criminal
Justice Act 2003 (Categories of Offences) Order (SI 2004/3346), banded together offences of
‘theft’ (Part 1) and ‘sexual offences against persons under the age of 16’ (Part 2). The former
encompasses various types of instrumental crime, such as theft, burglary and robbery; the lat-
ter, a lengthy list of sexual offences committed against those below the age of consent, such as
rape and indecent assault.

The working of s. 103(2) is, inevitably, ‘without prejudice to any other way’ of establishing
propensity. This means, for example, that the provision does not prevent, where appropriate: the
adduction of evidence of the commission of offences that have not resulted in convictions; that
have resulted in convictions for offences of a different type to those with which the defendant is
presently charged; that are in different categories; or evidence that shows a general propensity
towards misconduct. Conversely, as will be seen, it is not necessarily enough for a previous con-
viction to fall within the same ‘category’ as that presently charged for it to be adduced.
As with the old similar fact regime, the bad character adduced under the CJA 2003 can con-
stitute other counts on the same indictment, provided the allegations are not thought to be the
result of collusion or mutual infection. Thus, in R v Chopra [2007] 1 Cr App R 16, the defendant
was a dentist, accused of indecently assaulting three young girls while examining or working
on their teeth. One of the allegations was 10 years old, another related to events a year earlier,
and one was current. They made up three separate counts on an indictment, and the trial judge
ruled that the three allegations were relevant to whether any of the incidents had occurred and
so could be mutually supportive of each other in the absence of collusion (though he manifested
an unfortunate willingness to rely on the old, by then abolished, common law rules on bad
character when making his decision). The defendant was convicted of the current allegation
and acquitted of the other two (older) alleged offences. The trial judge’s decision was upheld by
the Court of Appeal, which felt that the similar allegations could quite properly be admitted
under s. 101(1)(d) in the instant case, even though two had resulted in acquittals.
R v Chopra [2007] 1 Cr App R 16, CA
Hughes LJ
For the purposes of the present case the relevant gateway is s. 101(1)(d). The evidence of the sev-
eral complainants is cross-admissible if, but only if, it is relevant to an important matter in issue
between the defendant and the prosecution. Mr Coker would have us define the important matter
in issue as whether it would be an affront to common sense for the complainants independently to
make similar false allegations. The important matter in issue in relation to each count is whether
there was an offence committed by the defendant or no offence at all and s. 103 expressly provides
that the matters in issue between the Crown and the defendant include whether the latter has
a propensity to commit offences of the kind with which he is charged, except where his having
such propensity makes it no more likely that he is guilty of the offence charged. It is that provision,
together with the abolition by s.99 of the common law rules as to the admissibility of bad character
evidence which effects the sea change to which we have previously referred. The present case is
one in which quite clearly if the evidence did establish a propensity in the defendant occasionally
to molest young female patients in the course of dental examination, that did make it more likely
that he had committed the several offences charged. We do not understand Mr Coker to submit
otherwise. Of course, where propensity is advanced by way of multiple complaints, none of which
has yet been proved, and whether they are proved or not is the question which the jury must
answer, that is a different case from the case where propensity is advanced through proof of a
previous conviction which may be incapable of contradiction. However, the 2003 Act governs all
evidence of bad character, not only conclusive or undisputable evidence.
It follows that in a case of this kind the critical question for the judge is now whether or not the
evidence of one complainant is relevant as going, or being capable of going to establish propen-
sity to commit offences of the kind charged. We wish to make it clear that not all evidence of other
misbehaviour will by any means do so. There has to be sufficient connection between the facts of

the several allegations for it properly to be capable of saying that they may establish propensity
to offend in the manner charged. But the answer to the question whether the evidence does so is
not necessarily the same as it would have been before the common law rules of admissibility were
abolished by s. 99. The test now is the simple test of relevance—s. 101(1)(d).
Judicial Discretion to Exclude Bad Character Evidence

Section 101(3) makes it clear that bad character evidence will not automatically be admissible
under s. 101(1)(d), even if potentially relevant as indicative of propensity. It can be excluded, on
defence application, if admitting the evidence would have ‘such an adverse effect on the fairness
of the proceedings that the court ought not to admit it’. In one of the appeals heard in R v Weir
and Others (2006) 1 Cr App R 19 the Court of Appeal suggested that, if necessary, a trial judge
could expressly encourage the making of such an application by a defendant. The wording of this
provision would seem to render defence applications under the similarly phrased general exclu-
sionary discretion contained in s 78 of the Police and Criminal Evidence Act 1984 superfluous.
Indeed, in R v Hanson, Gilmore and Pickering [2005] 1 WLR 3169, the Court of Appeal, giv-
ing guidance on the section, noted that the wording of s. 101(3) is actually stronger than the
comparable provision in s. 78, employing the word ‘must’ rather than ‘may’ as to the court’s
power to reject such evidence. Additionally, under s. 103(3) convictions should not be adduced
if the court is satisfied ‘by reason of the length of time since the conviction or for any other
reason that it would be unjust’ so providing what is, ostensibly, a separate exclusionary discre-
tion. However, the court in Hanson observed that the decisions required of a trial judge under
s. 101(3) and s. 103(3), though not identical, were closely related; a considerable overlap between
the two must be expected.
In Hanson, it was also noted that when considering what is just under s. 103(3), and the fair-
ness of the proceedings under s. 101(3), a trial judge might, among other factors, take into con-
sideration the degree of similarity between any previous convictions and the offence charged,
even if they were both within the same description or prescribed category of offences. For
example, theft and assault embrace a wide spectrum of criminal conduct. Nevertheless, the
court stressed that this does not mean that what used to be referred to as ‘striking similarity’
(under the old similar-fact rule) must be shown before such convictions become admissible.
Additionally, in reaching a decision, the trial judge might take into consideration the respect-
ive gravity of the past and present offences; for example, it might be unjust to a defendant with
a murder conviction who is on trial for common assault to allow the former to be adduced in
support of the latter. Furthermore, the court held that a trial judge should always consider the
strength of the prosecution case. If there was very little other evidence against a defendant,
it would be unlikely to be just to admit his previous convictions, whatever they were (and so,
perhaps, risking a conviction based on prejudice).
It should be noted that, under s. 101(4), the court, when considering a s. 101(3) application,
must have particular regard to the age of the misconduct that the Crown seeks to adduce. This
is reiterated in a slightly different context in s. 103(3). Although many of the factors identified as
significant in Hanson when assessing probative value and where the interests of justice lay, were
anticipated by the Law Commission (in clause 5(2) of its draft bill), only the age of the miscon-
duct was expressly referred to in the new Act, suggesting that it will often be of prime import-
ance. It also seems from the case law that a lapse of time will be more significant if there has not

been any ensuing criminality in the meantime. Although the Commission recommended that
leave would have to be sought from the court to adduce misconduct evidence (and this would
only be granted if it was in the ‘interests of justice’)6 under s. 101(3) the onus is on the accused,
and it is necessary for a defendant to make an application to exclude such evidence (albeit that
a trial judge might invite him to do so in appropriate cases).
Although the more proximate in time that the commission of the offences that led to previ-
ous convictions are to the offence presently charged, the more relevant they are likely to be for
the purposes of s. 101, it does not normally matter that they were committed after the offence(s)
that are currently before the court. It is their relevance to the defendant’s propensity at the time
that he offended that is vital. Thus, in R v Adenusi [2006] Crim LR 929, the Court of Appeal
upheld a trial judge’s decision to admit a defendant’s convictions for using a false instrument,
under s. 101(1)(d), even though they arose from crimes that had been committed five days after
the similar offence with which he was presently charged.
The ‘interests of justice’ have to be decided at the time that an application is made, and having
regard to the gateway on which it is based, and so can change over the course of a trial. Thus, in
R v Edwards (Karl) and others [2006] 1 Cr App R 3, the Court of Appeal upheld a trial judge’s
decision to refuse a prosecution application to adduce the defendant’s previous convictions
when it was made at the start of the trial, pursuant to s. 101(1)(d), largely because of the age of the
previous offences, but, subsequently, to permit some of them to be adduced under s. 101(1)(g),
after the accused man had made a very serious and sustained attack on prosecution witnesses
during cross-examination.
The discretion will not be used to exclude evidence that is highly probative, even if it is damn-
ing to the defendant. In R v Kordasinski [2007] 1 Cr App R 17, the appellant was accused of rape
and false imprisonment. He claimed that he should not have had several previous, and very
similar, convictions that he had accrued in his native Poland, some six years earlier, adduced
under s. 101(1)(d). He argued that the evidence should have been excluded under s. 101(3) of the
2003 Act, on the grounds that, if the convictions were put before a jury, he would inevitably be
convicted. Thus, he claimed, adducing his previous convictions would necessarily have ‘such an
adverse effect on the proceedings that the court ought not admit it’. This argument was swift ly
dismissed by the Court of Appeal, which noted that the adduction of the convictions clearly met
the standards outlined in Hanson.
R v Kordasinski [2007] 1 Cr App R 17, CA
May LJ
Mr Aylett, for the appellant, virtually conceded before the judge that the Crown could pass the
gateways in s. 101(1)(d) and (g) but he submitted that the court should not admit the evidence
because s. 101(3) should apply. Under that subsection, the court must not admit the evidence in
the face of a defence application to exclude it, if it appears to the court that the admission of the
evidence would have such an adverse effect on the fairness of the proceedings that the court
ought not to admit it.
46 It is submitted that the appellant would almost inevitably be convicted if the jury heard the
details of the previous convictions in Poland. The jury could not be asked to keep that from their
minds. . . .
6
Evidence of Bad Character in Criminal Proceedings, no 273, published 9 October 2001, at 103–110.

49 We see no force in these grounds. The judge’s ruling in substance measured up to the stand-
ards outlined by this Court in R. v Hanson [2005] 2 Cr. App. R. 21 (p. 299); [2005] EWCA Crim 824, not
least with regard to the question to which the circumstances of the Polish convictions were plainly
material, assuming they were otherwise admissible and duly proved.
50 As to s. 101(3) and fairness, convictions in the present case would not, if the jury so decided,
depend wholly or mainly on the evidence of the previous convictions, nor indeed on the unsup-
ported evidence of the complainant alone. There was, of course, an issue of credibility between
her and the appellant. But there was other evidence supporting the complainant’s account.
Section 101(1)(d) in Practice

A key question prior to December 2004 was whether s. 101(1)(d) would liberalize the common
law situation by making it easier to adduce a defendant’s previous misconduct to directly sug-
gest present guilt. The Law Commission’s 2001 Report, which underpins much of the regime set
out under the new statute, was adamant that any new Act should see a ‘final break’ with the old
similar fact formulae. As a result, it was widely assumed that such a liberalization would occur
under any new statutory provision. Indeed, in R v Edwards and others [2006] 2 Cr App R 4, Scott
Baker LJ expressly observed that it was ‘apparent’ that Parliament had intended that under the
new statute evidence of defendant bad conduct should be put before juries more frequently than
had previously been the case.
Even so, the Law Commission did not envisage that such evidence would be lightly adduced. It
favoured an enhanced relevance test or threshold for allowing in evidence to prove a ‘tendency’
to act or think in a certain way, and argued that such evidence should only be adduced if it was
of ‘substantial’ probative value. Although this has been effected in the new Act with regard to
matters in issue between defendants and co-defendants under s. 101(1)(e), it was not expressly
extended to prosecution evidence under s. 101(1)(d). Section 103(1)(a) does state that evidence of
misconduct cannot be adduced by the Crown if the propensity it establishes makes it ‘no more
likely’ that a defendant is guilty of the offence charged. However, this provision might seem
superfluous; in such a situation it would merely occasion prejudice and would be irrelevant.
Arguably, this part of the section is not entirely helpful as, theoretically, a small amount of
probative value could be attributed to most convictions of a similar type to those charged. In
practice, it probably means that cases of minimal cogency, such as, for example, a situation
in which a murder defendant has previous convictions for minor offences of violence, can be
ignored on a de minimis basis (without necessitating the exercise of judicial discretion under
s. 101(3) and s. 103(3) of the Act).
The 2003 Act clearly has led to an abandonment of the historic approach to ‘tendency’ evi-
dence set out in cases such as Makin. Thus, in the first case on the new provisions to be heard
at appellate level, R v Bradley 1 Cr App R 24, the Court of Appeal expressly noted that it was
now possible to view a general propensity to offend in the past as indicative of present guilt (the
previously ‘forbidden line of reasoning’). Similarly, in R v Antony Weir & Others [2006] 1 Cr
App R 19, the Court of Appeal stressed that bad character evidence which satisfied the require-
ments of s. 101(1) of the Criminal Justice Act 2003 was admissible, even though it might not
have satisfied the pre-existing test for similar-fact evidence.
Illustrative of this, in R v White and Hanson (Damien) (2005) The Times 23 November, a
defendant’s previous conviction for attempted murder and robbery were revealed to the jury

at his trial for a murder committed in the course of a robbery. They indicated that he was an
extremely violent youth as well as being a robber. As a result, prosecuting counsel could inform
the jury that, in the light of the new statute ‘the [other] evidence not only suggests he was the
robber but his bad character indicates that fact as well’. As a consequence of these changes, and
as Lord Phillips CJ expressly observed in Campbell v R [2007] EWCA Crim 1472, prior to the
advent of the CJA 2003, it was: ‘ . . . rare for a jury to be given details of a defendant’s previous
criminal record. Since that Act has come into force it has become much more common’.
Unfortunately, Bradley did not provide detailed guidance as to how the new provisions
should be interpreted. However, this was partially remedied by the Court of Appeal in the
conjoined appeals considered in R v Hanson, Gilmore and Pickering [2005] 1 WLR 3169 and
has been further elaborated by more recent cases. In Hanson the court considered and rejected
three applications for leave to appeal that had been referred to the full court. All three cases
involved the adduction of previous convictions (rather than other forms of ‘bad character’ evi-
dence). Although the Court of Appeal made it clear that its comments were not intended to be
a comprehensive treatise on the operation of the new provisions, Rose LJ made a number of
important observations about their operation.
R v Hanson, Gilmore and Pickering [2005] 1 WLR 3169, CA
Rose LJ
The starting point should be for judges and practitioners to bear in mind that Parliament’s purpose
in the legislation, as we divine it from the terms of the Act, was to assist in the evidence based con-
viction of the guilty, without putting those who are not guilty at risk of conviction by prejudice. It is
accordingly to be hoped that prosecution applications to adduce such evidence will not be made
routinely, simply because a defendant has previous convictions, but will be based on the particular
circumstances of each case. . . . Where propensity to commit the offence is relied upon there are
thus essentially three questions to be considered. 1. Does the history of conviction(s) establish a
propensity to commit offences of the kind charged? 2. Does that propensity make it more likely
that the defendant committed the offence charged? 3. Is it unjust to rely on the conviction(s) of
the same description or category; and, in any event, will the proceedings be unfair if they are
admitted? . . . In referring to offences of the same description or category, section 103(2) is not
exhaustive of the types of conviction which might be relied upon to show evidence of propen-
sity to commit offences of the kind charged. Nor, however, is it necessarily sufficient, in order to
show such propensity, that a conviction should be of the same description or category as that
charged. . . . There is no minimum number of events necessary to demonstrate such a propensity.
The fewer the number of convictions the weaker is likely to be the evidence of propensity. A sin-
gle previous conviction for an offence of the same description or category will often not show
propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or
where its circumstances demonstrate probative force in relation to the offence charged. . . . Child
sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we
attempt no exhaustive list. Circumstances demonstrating probative force are not confined to
those sharing striking similarity. So, a single conviction for shoplifting, will not, without more, be
admissible to show propensity to steal. But if the modus operandi has significant features shared
by the offence charged it may show propensity . . . It is to be noted that the wording of section
101(3)—‘must not admit’—is stronger than the comparable provision in section 78 of the Police
and Criminal Evidence Act 1984—‘may refuse to allow’. When considering what is just under sec-
tion 103(3), and the fairness of the proceedings under section 101(3), the judge may, among other

factors, take into consideration the degree of similarity between the previous conviction and the
offence charged, albeit they are both within the same description or prescribed category. For
example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of
conduct. This does not however mean that what used to be referred to as striking similarity must
be shown before convictions become admissible. The judge may also take into consideration the
respective gravity of the past and present offences. He or she must always consider the strength
of the prosecution case. If there is no or very little other evidence against a defendant, it is unlikely
to be just to admit his previous convictions, whatever they are . . . Old convictions, with no special
feature shared with the offence charged, are likely seriously to affect the fairness of proceedings
adversely, unless, despite their age, it can properly be said that they show a continuing propensity.
It will often be necessary, before determining admissibility and even when considering offences
of the same description or category, to examine each individual conviction rather than merely
to look at the name of the offence or at the defendant’s record as a whole. . . . As to propensity
to untruthfulness, this, as it seems to us, is not the same as propensity to dishonesty. It is to be
assumed, bearing in mind the frequency with which the words honest and dishonest appear in the
criminal law, that Parliament deliberately chose the word ‘untruthful’ to convey a different mean-
ing, reflecting a defendant’s account of his behaviour, or lies told when committing an offence.
Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely
to be capable of showing a propensity to be untruthful where, in the present case, truthfulness
is an issue and, in the earlier case, either there was a plea of not guilty and the defendant gave an
account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way
in which the offence was committed shows a propensity for untruthfulness, for example, by the
making of false representations. The observations made above in para 9 as to the number of con-
victions apply equally here. . . . Our final general observation is that, in any case in which evidence
of bad character is admitted to show propensity, whether to commit offences or to be untruthful,
the judge in summing up should warn the jury clearly against placing undue reliance on previous
convictions. Evidence of bad character cannot be used simply to bolster a weak case, or to preju-
dice the minds of a jury against a defendant.
As can be seen from this extract, in Hanson, the court was relatively conservative in its interpre-
tation of s. 101, expressing a hope that applications to adduce bad character evidence would not
be made as a matter of course. It is apparent that there is still a de facto, if not statutory, quality
threshold on the admissibility of propensity evidence, albeit that it is set at a significantly lower
level than was the situation at common law. It also seems that some of the principles established
under the old similar fact regime, when suitably modified, continue to be of limited significance
with regard to the new provisions. Thus, although there is no minimum number of previous
incidents necessary to demonstrate a propensity to offend, the more there are, the greater will
be the cogency ascribed to such evidence, and the more likely it is that it will be admitted.
In Hanson the court also concluded that a single previous conviction, even if of the same
description or category as that presently charged, would often not show propensity, especially
if it was for a ‘common’ type of crime. However, this might not be the case if it demonstrated a
tendency to ‘unusual’ behaviour, or where its circumstances had particular probative force in
relation to the offence charged, such as cases of child sexual abuse (there are echoes here of the
old regime as seen in DPP v P [1991] 2 AC 447).
As a result, one previous conviction for shoplifting, committed without a highly singular
modus operandi, would not normally be admissible to show a propensity to steal under the new
statute. However, several recent findings of guilt for that offence might well be admissible, even
if the offence of theft presently charged was of a very different type. Thus, in Gilmore, the first

instance judge’s decision to admit three convictions for shoplifting during the defendant’s trial
for an opportunistic theft from a garden shed was upheld. The accused man’s defence had been
that he found the stolen items abandoned in an alley and assumed they were rubbish and so bona
vacantia. A selection of other cases provide further elucidation of the approach now adopted.
In Hanson, Gilmore and Pickering, Rose LJ stressed the significance of the age of previous
misconduct when he suggested that old convictions, which shared no special features with the
offence charged, were often likely to seriously affect the fairness of proceedings, and so should
not normally be admitted. Logically, the court also observed that, in most cases, if there was
a substantial gap between the dates of commission and conviction for the earlier offence, it
was the former that was indicative of propensity and thus of most significance when assessing
admissibility under s. 101(1)(d).
In R v M [2007] Crim LR 637, it was reiterated that single convictions that were also ‘old’
would have to be particularly exceptional to be adduced. In this case, the Court of Appeal
allowed the appeal of a defendant who had been convicted of possession of a firearm with intent
to cause fear of violence, contrary to s. 16A of the Firearms Act 1968. At his trial, a previous con-
viction for possession of a firearm without a licence, which was some 20 years old, was admitted
to support identification. The Court of Appeal held that this offence was not sufficiently
unusual to warrant being adduced. The court further noted that it would be very rare, though
not impossible, for a single conviction of this age to be admissible under s. 101(1)(d).
However, in the case of Pickering, where the applicant was convicted of rape and indecent
assault on one of his young daughters, a decade-old conviction for indecent assault on an 11-year-
old girl was held to be admissible. This was an ‘unusual’ type of offence, and even a single, old,
conviction for a similar matter was considered to be highly probative of the offence charged.
By further contrast, in R v Long (Darrell) [2006] WL 690630, the Court of Appeal quashed
the conviction of a defendant accused of robbery from the person, after an interpersonal dis-
pute, because the trial judge had allowed a single previous conviction for robbery to be adduced
pursuant to s. 101(1)(d). No special but common features between the crime alleged, and that
which had previously resulted in a conviction, had been revealed by the prosecution. Indeed,
the two robberies were of markedly different types; the earlier conviction stemmed from a ‘con-
ventional’ armed raid on retail premises in which the till contents had been snatched. Having
regard to the comments made in Hanson about single previous convictions without special
features, the Court of Appeal felt that the conviction was unsafe.
In like manner, in R v Beverley [2006] Crim LR 1065, the defendant was accused of partici-
pating in a conspiracy to import cocaine. He had two previous convictions. One of these, from
more than five years earlier, was for possession of cannabis with intent to supply, and one was
from two years previously, for simple possession of cannabis. These were adduced at trial under
s. 101(1)(d), as showing a propensity to commit the type of offence with which he was charged.
However, on appeal, the conviction was quashed, on the basis that one of the convictions was
old, and one was of a different character (simple possession), that they involved a different type
of drug, and related to offences of a vastly lesser degree of seriousness, both in size and complex-
ity, to the large-scale conspiracy charged in the instant case.
Although, as these cases suggest, most situations where evidence is adduced under s. 101(1)(d)
will require either an ‘unusual’ offence or one committed in an unusual manner, or, alterna-
tively, several previous offences, in exceptional cases this will not be so. For example, in R v
Isichei [2006] EWCA 1815, a defendant’s single conviction for importing cocaine some six years
earlier was admitted under s. 101(1)(d), as it was adduced not to suggest a propensity to commit
such offences, but to support the identification of a complainant in an assault occasioning ABH
and robbery indictment, who had heard the defendant demanding money for ‘coke’.

The approach adopted in Hanson is certainly at variance to that originally anticipated (in
October 2004) by David Blunkett, the then Home Secretary, who suggested that there would
be a ‘strong presumption’ (albeit rebuttable) that previous convictions that were in the same
category as that subsequently being tried should be admitted. However, this is clearly not the
case, as in Hanson the Court of Appeal made it very apparent that it is not necessarily sufficient
to establish propensity for a single previous conviction to be of the same description or cat-
egory as that presently charged. Illustrative of this, in Hanson, the court felt that convictions for
handling and aggravated vehicle taking, although technically within the ‘theft’ category of the
relevant statutory instrument, did not show, without more pertinent information, a propensity
to burgle or to steal.
The Court of Appeal in Hanson, Gilmore and Pickering also observed that even if previous
offences were of the same description or category as that presently charged, it would often be
necessary, before determining admissibility, to examine the particulars of each conviction indi-
vidually (though any sentence passed would not normally be viewed as probative). The court
suggested, in the same case, that where propensity to commit the type of offence charged was
relied upon there are, essentially, three questions that have to be considered: 1. Does the history
of conviction(s) establish a propensity to commit offences of the kind charged? 2. Does that
propensity make it more likely that the defendant committed the offence charged? 3. Is it unjust
to rely on the conviction(s) or will they make the proceedings unfair if admitted? Although
fairly vague, this approach does, at least, provide a structure for considering such applications.
Finally, in Hanson, the Court of Appeal noted that, provided a trial judge had directed him/
herself correctly, it would be ‘very slow’ to interfere with their ruling on the admissibility of
bad character evidence. The court would not normally intervene unless the judge’s decision as
to the capacity of prior convictions to establish a propensity to offend was plainly wrong or the
discretion had been exercised unreasonably in the Wednesbury sense.
Indicative of the range of the trial judge’s discretion, in this regard, is the case of R v Awaritefe
2007 [EWCA] Crim 706, where the Court of Appeal concluded that the defendant’s two previ-
ous convictions for middle ranking offences of violence, from a decade earlier, and a recent, but
relatively minor (of its type), conviction for assaulting a policeman in the execution of his duty,
were admissible under s. 101(1)(d) as showing a propensity to offend in a violent manner, where
the defendant was accused of two serious offences of causing grievous bodily harm with intent.
The court noted that, although some trial judges would not have acceded to the prosecution
request, the decision was within the first instance judge’s margin of discretion, and so would
not be overturned. (This appears to have been considered to be a ‘borderline’ decision.)
Determining such matters, on appeal, will be facilitated by the requirement under s. 110
that reasons for such a decision be stated in open court when making a ruling under s. 101 (or,
for that matter, s. 100). The importance of this provision was reiterated on several subsequent
occasions by the Court of Appeal, as first instance judges were occasionally somewhat lax about
complying with this requirement, at least in the early days of the statute’s operation.
Propensity to Untruthfulness
Although s. 101(1)(d) deals with bad character evidence going directly to the issue of guilt, s.
103(1)(b) makes it clear that the sub-section does not operate purely in this manner. It also deals
with a defendant’s propensity to be untruthful, a completely novel departure from the position
at common law. The Law Commission accepted that, in most trials, the truth of the defendant’s

version of events was itself an issue in the case. However, it concluded that normally it would not
be fair to allow the prosecution to adduce evidence of a defendant’s propensity to be untruthful.
Nevertheless, the Commission did believe that the adduction of evidence of such a propensity
should be permissible in strictly defined circumstances, where it was especially probative. For
example, where the prosecution sought to argue that the defendant’s explanation was strikingly
similar to one advanced by him on a previous occasion, and thus unlikely to be true.
This would normally require the defence to be of an unusual or singular kind (there are only
a limited number of general defences to many crimes). It might cover situations like that identi-
fied in R v Reid [1989] Crim LR 719, in which the defendant was accused of robbing a mini-cab
driver at knife-point, but claimed that he had entered the cab only after the robbery had taken
place. This was almost identical to the defence he had raised earlier to another, and very similar,
robbery. As such, it was highly probative as to the truth (or lack of it) of his defence on the sec-
ond occasion in which it was employed. Similarly, it was suggested that the use of an alibi that
was identical to one used at an earlier trial might come within this provision.7 Thus, it could
encompass cases similar to Jones v DPP [1962] AC 635, in which the defendant adduced detailed
and near identical alibis, in two separate trials, involving sexual attacks on girl guides.
These are extreme cases. In practice, it seems that the provision as enacted will be interpreted
more widely than this. The only statutory limitation is that propensity to untruthfulness can-
not be adduced where it is ‘not suggested that the defendant’s case is untruthful in any respect’.
As a result, in theory, most defendants who gave evidence to support a ‘not guilty’ plea would
come within its provisions, which could be limited to cases in which the accused’s defence was
based on a point of law or in which there was nothing more than a simple denial of the charges,
putting the Crown to strict proof of its case.
However, even if it is being interpreted in a broader manner than the Commission may have
envisaged, the Court of Appeal stressed in Hanson that a propensity to untruthfulness is not
the same thing as a propensity to dishonesty. It reflected a defendant’s post-arrest account of
his behaviour, or lies told when committing the offence itself. Thus, a ‘straightforward’ thief,
such as a pickpocket, who always pleaded guilty to his crimes, and freely made full admissions
to the police when caught, would not necessarily be treated as ‘untruthful’ although clearly
‘dishonest’. By contrast, an earlier conviction for an offence that did not involve dishonesty per
se, such as violence or assault, might be admissible to show a propensity to be untruthful if, in
the earlier case, the defendant gave an account, on arrest, in interview, or in evidence (follow-
ing a not guilty plea) that the jury must have disbelieved. Despite this, some offences involving
dishonesty, by their inherent nature, are likely to involve untruthfulness, such as obtaining
property by deception or perjury.
Perhaps a little surprisingly, it also appears, in the light of some recent cases, that if a trial
judge decides that previous convictions are not admissible on the issue of untruthfulness, but
are for a reason such as propensity, he should not normally direct jurors to consider the previ-
ous offences as being relevant to the issue of the defendant’s credibility. The courts are clearly
discouraging the use of ‘run of the mill’ offences as an indicator of general credibility when
adduced under s. 101(1)(d).
For example, in Campbell v R [2007] EWCA Crim 1472, the (then) specimen direction on
character issued by the Judicial Studies Board, had been read to jurors at the trial of a defendant
in an assault case, after the accused man’s previous and recent convictions for similar offences
of violence had been revealed to them under s. 101(1)(d). However, the judge’s direction was
subsequently criticized by the Court of Appeal for suggesting that jurors could have regard
7
No 273, October 2001, Evidence of Bad Character in Criminal Proceedings, at paras. 11.32–11.34.

to the convictions when deciding: ‘. . . whether or not the defendant’s evidence to you was
truthful’.
However, the restrictive position reached in Hanson with regard to the meaning of a ‘pro-
pensity towards untruthfulness’ and the use of offences of dishonesty when considering cred-
ibility does not necessarily apply to other limbs of the section (ie apart from s. 101(1)(d)). Thus,
offences of ordinary dishonesty, such as theft, that are adduced under s. 101(1)(g) can assist
the jury in making an assessment about the defendant’s character, for the purposes of decid-
ing whether or not to believe his evidence rather than that of the prosecution witnesses: R v
Williams [2007] EWCA Crim 1951.
Fabrication and Concoction of Alleged

Previous Misconduct
There was a long-standing fear in ‘similar fact’ cases of collusion between complainants or the
deliberate fabrication of evidence; this would then destroy the probative value that flowed from
the inherent unlikelihood of co-incidence in such cases. However, in R v H [1995] 2 All ER 865
the House of Lords suggested that a court should normally admit similar fact evidence on the
assumption that it was true and, if there was a suggestion of collusion or fabrication, warn the
jury that they could only rely on it if they were first satisfied that this was not the case. It was only
in exceptional circumstances, where evidence emerged that clearly indicated that no reasonable
jury could come to this conclusion, that a court should exclude the evidence altogether.
The same issue has been specifically addressed in s. 109 of the Criminal Justice Act 2003,
with regard to the truth of previous misconduct being adduced under s. 101, and especially
s. 101(1)(d). Similar conclusions have been reached. Comments by Kennedy LJ in Weir would
appear to suggest that the approach to the risk of collusion, and the directions that should be
given on the issue to a jury, under the new Act, will be much the same as in H.
Essentially, s. 109(1) provides that a reference to the relevance or probative value of evidence
is to be ‘on the assumption that it is true’. However, under s. 109(2) a court need not assume
this if it appears that ‘no court or jury could reasonably find it to be true’. Thus, if compelling
evidence is adduced to suggest that alleged previous misconduct is fabricated, a trial judge can
refuse to let it go to a jury under s. 101(1)(d).
Section 107 establishes a further safeguard. It provides that if, after evidence of bad character
has been adduced under (inter alia) s. 101(1)(d), the court is satisfied that it is ‘contaminated’,
perhaps, for example, by apparent fabrication, in such a way that any ensuing conviction would
be unsafe, the judge must either direct the jury to acquit the defendant of the offence or dis-
charge the jury and so allow a retrial. This is one of those unusual situations in which a trial
judge, rather than the jury, has to make an assessment of fact in a criminal case. Rather oddly,
however, s. 107 only applies to trials on indictment; presumably, magistrates at a summary trial
are deemed to be capable of putting the evidence of bad character from their minds.
However, if he does not reach this conclusion, but collusion, or innocent contamination,
has been raised, or is a possibility on the facts of a case, a trial judge must still direct the jury,
in appropriate terms, about the potential dangers of such evidence. In R v Lamb [2007] EWCA
Crim 1766, the appellant was a 33-year-old school teacher, convicted of sexual activity with
two 17-year-old female pupils whom he taught at his school. The counts arose out of apparently
entirely separate allegations, which were held to be cross-admissible, to support each other, for
the purposes of s. 101(1)(d) (assuming the jury were satisfied of their truth).

Nevertheless, in this case, although there was no suggestion of collusion, there was a clear
possibility that the two complainants had been consciously or unconsciously influenced in their
accounts by hearing of, and discussing, the other’s allegation. Despite this, the first instance
judge failed to warn the jury adequately to consider whether it was possible that the complain-
ants had influenced each other in this manner, and, if so, how this affected the weight of their
evidence. As a result, the ensuing convictions were quashed.
R v Lamb [2007] EWCA Crim 1766, CA
Rix LJ
In our judgment, therefore, the judge’s failure to warn the jury about the danger of innocent con-
tamination was a material misdirection, which went to the heart of this case. We do not suggest
that the judge was wrong not to have stopped the case himself, something that was never sug-
gested, but we do think that in the circumstances the jury’s verdicts are as a result of the judge’s
misdirection themselves unsafe. In this connection, the manner in which the judge dealt with the
question of similarities, although it would not in our view by itself have called the verdicts into
question, did not assist. As Hanson n and Chopraa have emphasised, sufficient similarity raising the
issue of the likelihood or unlikelihood of innocent coincidence is a relevant and sometimes critical
test. It is therefore necessary for the judge, if he outlines the similarities to the jury, to give a bal-
anced and accurate account of them, so far as they evidence a propensity which makes it more
likely that a defendant has committed an offence.
Notice Procedures
Section 111(1) of the 2003 Act authorized the creation of such rules of court as were ‘necessary
or expedient’ to govern the adduction of bad character evidence, albeit with a judicial discre-
tion to override such provisions: s. 111(3). These are now contained in r. 35 of the Uniform
Criminal Procedure Rules 2005, and providing such notice is mandatory. They are accom-
panied by appropriate forms for service on the defence, the most important of them being form
BC1 (for non-defendants) and BC2 (for defendants). These provide details of the bad character
evidence that it is intended to adduce or elicit by cross-examination and the justification for
doing so. Such applications can, in turn, be challenged prior to trial by the defendant (using
form BC3) under r. 35.6.
A timetable for compliance is also set out in r. 35.2–4, though a trial judge always has a
discretion to permit departures from it: r. 35.8. Such a discretion is obviously necessary; some-
times, as when ‘attacks’ are made on third parties on the part of the defendant, it will be quite
impossible to envisage the need to adduce the accused’s bad character prior to trial. In other
cases, however, there will be less excuse for a failure to comply with the notice procedure, this
will be especially the case with regard to s. 101(1)(d).
In Hanson, the court noted that in a case where the Crown intends to adduce evidence of
a defendant’s convictions it needs to decide, at the time of giving notice of its application to
adduce previous bad character, whether it proposes to rely simply upon the fact of convic-
tion or also upon the facts on which the conviction was based. The former might be enough if
the circumstances of the conviction are sufficiently apparent from its description to justify a

finding that it can establish propensity, either to commit an offence of the kind charged or to
be untruthful, and that the requirements of ss. 103(3) and 101(3) can, subject to any particular
matter raised on behalf of the defendant, be satisfied. For example, a succession of convictions
for dwelling-house burglary, where the same offence is presently charged, may well call for no
further evidence than proof of the convictions.
But where, as will often be the case, the Crown needs, and proposes, to rely on the circum-
stances of the convictions, those circumstances and the manner in which they are to be proved
must be set out in the application. Thus, if a defendant is accused of theft and has a single previ-
ous conviction for the crime, the prosecution will normally have to find some special details
underlying its modus operandi before they can adduce the earlier matter; for example, in a
shoplift ing case, by showing that he has used the same false bottomed bag to conceal the stolen
item. This detail will have to be contained in the relevant notice. However, there is a similar
obligation of frankness upon the defendant, which will be reinforced by the general obliga-
tion contained in the CPR 1998 to give active assistance to the court in its case management
(see r. 3.3). Routine applications by defendants for disclosure of the circumstances of previous
convictions are likely to be met by a requirement that the request be justified.
The Court of Appeal suggested in Hanson that, in most cases, the relevant circumstances
of previous convictions should be capable of agreement, and put before the jury by way of
admission. The requirement in many propensity cases for information to be disclosed that goes
beyond the basic facts of conviction may discourage some prosecution applications and will
certainly require more pre-trial preparation by the Crown. In R v Bovell and Dowds [2005] 2
Cr App R 27, the Court of Appeal reiterated the importance of complying with the rules on
providing notice. Hanson and Bovell also make it clear that a trial judge’s initial decision on
such matters as to any consequences imposed as a result of noncompliance will not be lightly
overturned on appeal. As a result, similar applications may receive different disposals at trial
without founding an appeal.
More detailed consideration as to the consequences of non-compliance with notice pro-
cedures was provided by the Divisional Court in R (on the application of Robinson) v Sutton
Coldfield Magistrates Court [2006] 2 Cr App R 13. In this case, the defendant was accused of
assault. At a pre-trial hearing for a summary trial of the matter, the prosecution indicated that
they would seek to introduce his bad character. However, despite this warning, the prosecution
did not formally serve notice of this until the eve of the trial (ie well out of time).
The defendant argued that the evidence of bad character ought not to have been admitted
at trial, as the court should only exercise its discretion to extend time limits in exceptional
circumstances, and this did not apply to the instant case. This approach was rejected by the
Divisional Court, though the court again stressed the importance of compliance with the
notice procedures and stressed that any application for an extension of time limits would be
closely scrutinized. In particular, it held that reasons for any failure to comply with the notice
provisions would have to be set out. Perhaps most importantly, the court held that it would have
to be satisfied that there was no conceivable prejudice to the defendant in admitting the evi-
dence when there had been a failure to meet deadlines. In the instant case, the defendant had
been made aware early in the proceedings that such an application might be made and was well
aware of his own convictions, so there was no prejudice.
Nevertheless, despite regularly stressing the importance of compliance, it seems that the
higher courts have rarely allowed an appeal on the grounds of non-compliance. It is possi-
ble that, as the procedures become better known and understood by lawyers, they will take
a slightly more robust, and less forgiving, approach. Additionally, it can be noted that first
instance judges appear to be taking markedly different approaches to such lapses. Some seem to

take a relatively severe view of any failure to comply with notice requirements, and quite read-
ily refuse to admit bad character evidence because of non-compliance (for example, R v O’Neil,
unreported, Preston Crown Court, 22 February 2005); others are more lenient.
R (on the application of Robinson) v Sutton Coldfield Magistrates Court

[2006] 2 Cr App R 13, DC
Owen J
The first point to be made is that time limits must be observed. The objective of the Criminal
Procedure Rules ‘to deal with all cases efficiently and expeditiously’ depends upon adherence to
the timetable set out in the rules. Secondly, Parliament has given the court a discretionary power
to shorten a time limit or to extend it even after it has expired: r. 35(8). In the exercise of that dis-
cretion the court will take account of all the relevant considerations, including the furtherance of
the overriding objective. I am not persuaded that the discretion should be fettered in the manner
for which the claimant contends, namely that the time should only be extended in exceptional
circumstances. 15 In this case there were two principal material considerations: first the reason
for the failure to comply with the rules. As to that a party seeking an extension must plainly explain
the reasons for its failure. Secondly, there was the question of whether the claimant’s position
was prejudiced by the failure. 16 The reason advanced for the failure was that the police had made
every effort to discover the facts of the previous convictions, but were not able to do so until
June 7. For my part, I have reservations as to the adequacy of that explanation. In my view a court
would ordinarily wish to know when the relevant enquiries had been initiated, and in broad terms
why they have not been completed within the time allowed. Any application for an extension will
be closely scrutinised by the court. A party seeking an extension cannot expect the indulgence of
the court unless it clearly sets out the reasons why it is seeking that indulgence. But importantly,
I am entirely satisfied that there was no conceivable prejudice to the claimant, bearing in mind
that he would have been well aware of the facts of his earlier convictions; secondly, that he was on
notice on April 14 that there could be such an application; and thirdly, that there was no application
for an adjournment on June 16 from which it is to be inferred that the claimant and his legal advis-
ers did not consider their position to be prejudiced by the short notice. In those circumstances I
am not persuaded that the justices erred in the exercise of their discretion to admit the evidence
of bad character, notwithstanding the failure to comply with the rules. This was not a decision at
which no reasonable bench of magistrates properly directed could have arrived.
Obligations on Trial Judges and Appeals

As Dame Heather Steel observed in R v Eastlake [2007] EWCA 603, there is a paradox inher-
ent in admitting evidence of bad character that is similar to that presently charged. The more
recent and similar such offences are to those before the court, the more powerfully they may
indicate a relevant propensity: ‘. . . but those factors may [also] strengthen the argument that
they should be excluded to avoid the risk of the trial becoming unbalanced by their admission
into evidence’. In these situations, the judge noted, one ‘safety valve’ was the giving of proper
jury directions as to the use (and dangers) of such bad character evidence.
In R v Hanson, Gilmore and Pickering [2005] 1 WLR 3169, the Court of Appeal observed that,
where evidence of bad character is admitted to show a propensity to offend or to be untruthful,

a trial judge, when summing up, should warn the jury clearly against placing undue reliance on
the defendant’s previous convictions. In particular, the jury should be directed that they should
not conclude that the defendant is guilty or untruthful merely because he has such convic-
tions and that their presence did not mean that he had committed the offence charged or been
untruthful in the case before the court. A trial judge should also direct the jury that whether
the previous convictions adduced demonstrated such a propensity was a matter for them to
decide and that they should also take into account what the defendant had said about them.
Additionally, although they were entitled, if they found such a propensity to be established,
to take it into account when determining guilt, it was only one relevant factor and must be
assessed in the light of all the other evidence in the case.
In R v Edwards (Karl) and others [2005] 1 Cr App R 3, Rose LJ approved the first instance judge’s
jury direction (which reflected the guidance given in Hanson) on the uses of bad character evi-
dence as being close to a model of its kind, one that might provide assistance to other judges.
R v Edwards (Karl) and others [2006] 1 Cr App R 3, CA
Rose LJ
Before leaving the case of Chohan, it is, as we foreshadowed at the beginning of this judgment,
perhaps helpful to refer to the summing-up of His Honour Judge Mort in Chohan’s case: ‘In this case
you have heard evidence that Mr Chohan has a bad character, in the sense that he has got criminal
convictions and you have heard, it is alleged, that he otherwise misconducted himself by supply-
ing heroin to Donna Marsh. It is important that you understand why you have heard this evidence
and how you can use it. As I will explain in more detail later, you must not convict Mr Chohan only
because he has got a bad character. You have heard of this bad character because, first of all, in
relation to the allegation that he was supplying drugs to Donna (and bear in mind it is her allegation
that that is the position) it may help you to understand other evidence in the case, namely how is
it that Donna Marsh was so confident that the man running past her on Lee Street, running away
from Mr Marsh and from the two women, was the defendant. The reason being because she was
seeing him several times a day when acquiring drugs from him. So it may help you to consider the
accuracy and reliability of her identification and it may help you to understand the case as a whole.
You have heard, in relation to the previous convictions, of his bad character and it may help you to
resolve an issue that has arisen between the defence and the prosecution, namely the question
whether he has a propensity or a tendency or an inclination to commit offences of the kind with
which he is charged. If you think it is right, you may take the previous convictions into account, in
deciding whether or not Mr Chohan committed the offences with which he is now charged. The
prosecution rely on the robbers in 1992 because they show that he has a tendency to use weapons
to threaten violence to steal and two instances have been given to you where a sheath knife was
used, one in order to steal and one whereby theft actually took place and it is said, ten years on,
now he is using a handgun. The prosecution rely on the burglaries in 2000 because they say that
they show that the defendant has a tendency to use bogus explanations to trick his way into older
people’s homes in order to steal from them . . . So the prosecution’s case there is that it is, on this
occasion, a combination of pretending to be looking for people who have robbed his mother, ask-
ing for a pen and paper to write down the description of the alleged robberies and then using the
pretext, coming back and saying: “We have found them” going in, producing the gun and stealing
wallet. So the crown are saying here there is a tendency to commit robberies with a weapon and
to target the elderly with bogus explanations and, therefore, they say it makes it more likely that
he is guilty of the offence. The defence, on the other hand, say, first of all, these robberies were

ten years ago, he described himself, “I was about 16 or 17 at the time, the burglaries were three
years old, I always pleaded guilty to offences that I had been arrested for” and it is, in fairness to
the defence, a matter which you can take into account, deciding what impact the convictions had
on his truthfulness. Mr Samuels put it in a well known phrase from Casablanca of “rounding up
the usual suspects” and that is what obviously you must be very careful about . . . If you do con-
clude that, at the time of these offences in May, 2003, Mr Chohan did have a propensity to com-
mit offences of that type, namely robberies with weapons or targeting the elderly with bogus
explanations to get entry into the property, then you can consider whether it makes it more likely
that he committed the offences in May, 2003. You have to decide to what extent, if at all, his char-
acter helps you when you are considering whether or not he is guilty. You must not convict simply
because of his convictions, nor mainly because of them. The propensity or tendency amounts
to some additional evidence pointing to guilt, but please bear in mind, even if he did have such
a tendency, it does not necessarily prove that he would commit further offences or that he has
committed these offences. You are also entitled to consider the evidence of Mr Chohan’s previous
convictions in the following way. If you think it right, you may take into account, when deciding
whether or not his evidence to you was truthful, because a person with convictions for dishonesty
may be less likely to tell the truth, but it does not follow that he is not capable of telling the truth.
Indeed, Mr Chohan says, “the fact that on the previous occasions I have been arrested and I have
always held my hands up means that, when I plead not guilty, I am likely to be telling the truth” and
you decide to what extent his character helps you when judging his evidence. So that is the extent
to which the evidence of his previous convictions may be used for the particular purposes I have
just indicated, if you find it helpful.’ That approach . . . provides an [almost] impeccable summing-up
which may well afford useful guidance in other cases where summing up the significance of previ-
ous convictions.
The requirement that a jury be warned in proper terms about the significance of past bad char-
acter is interpreted strictly. In R v Ifzal Iqbal [2006] EWCA Crim 1302 the Court of Appeal
quashed a conviction in a drugs case after concluding that a (repeated) warning from a first
instance judge that jurors ‘should not convict purely on the basis of these [past drugs] convic-
tions’ was still inadequate in the light of R v Edwards (Karl) and others [2006] 1 Cr App R 3.
Additionally, it should be noted that in Hanson the Court of Appeal observed that if, after a
ruling that evidence of bad character was admissible, a defendant pleaded guilty, it was highly
unlikely that it would entertain an appeal against conviction.
Section 101(1)(e)
A defendant’s bad character can be adduced under s. 101(1)(e) if it has ‘substantial probative
value in relation to an important matter in issue between the defendant and a co-defendant’.
In some respects, this replaces s. 1(3)(iii) of the (now repealed) Criminal Evidence Act 1898,
though it also deals with matters that were outside the scope of that provision.
Guidance is given on what is meant by the new sub-section in s. 104 of the Act. This states that
evidence is only admissible under s. 101(1)(e) by, or at the behest of, a co-defendant: s. 104(2).
In practice, this was almost the situation under s. 1(3)(iii). However, there was nothing in that
part of the 1898 Act expressly limiting it to co-defendants, and there were very rare examples
of the prosecution cross-examining under it: R v Seigley (1911) 6 Cr App R 106. Under the 2003
Act, the prosecution cannot have recourse to s. 101(1)(e). As with the prosecution under other

gateways, a co-defendant who intends to adduce such evidence is normally required to serve
notice of such an intention on his co-accused under r. 35.5 of the CPR 2005.
Again, as with other limbs of s. 101, a previous conviction is not necessarily essential. In
Ibrahim Musone v The Crown [2007] EWCA 1237, a defendant was allowed to adduce an allega-
tion of murder under s. 101(1)(e) made against a co-accused, for which his fellow defendant had
already been tried and acquitted, where the co-accused had subsequently admitted to him (the
defendant) that he (the co-defendant) truly had committed the killing for which he had been
found ‘not guilty’, and provided details of the crime which suggested that such a confession had
genuinely been made. The trial judge’s decision on this issue was subsequently approved by the
Court of Appeal.
Additionally, and vitally, it should be noted that a quality threshold is expressly set out in the
sub-section, one that is absent with regard to prosecution evidence of defendant bad character
adduced under s. 101(1)(d) (although imposed in practice by judicial interpretation of the provi-
sion), and which was also absent under s. 1(3)(iii) of the 1898 Act. This requires that the evidence
have ‘substantial probative value’ before it can be admitted. This means that evidence of only
minor cogency to a co-defendant’s case, though technically relevant, will not be admissible.
Furthermore, evidence adduced under s. 101(1)(e) must relate to an ‘important matter’ in the
trial, ie, a matter of ‘substantial importance in the context of the case as a whole’: s. 112(1). It will
not be admissible if the issue to which it relates is marginal to the case overall, though, it could
be argued, this provision will, to a considerable extent, overlap with the requirement that the
evidence have substantial probative value.
Against this, and unlike prosecution evidence of bad character under s. 101(1)(d), once this
threshold is satisfied, there is no judicial discretion to exclude such evidence. Section 101(3)
does not apply to s. 101(1)(e); nor, of course, does s. 78 of the PCEA 1984 (which is confined to
prosecution evidence). This also accords with the old situation under s. 1(3)(iii) of the 1898 Act:
R v Ellis [1961] 1 WLR 1064.
The rationale for this continuing distinction is that it is one thing to handicap the prosecu-
tion in the interests of fairness to a defendant, another to prevent an accused person properly
exploring an avenue of defence that is open to them. Of course, there was (and still will be) a
discretion to order separate trials where it is in the interests of justice, though, as there are also
usually compelling reasons for holding joint trials, the courts have always exercised this power
very circumspectly in the past: R v Hoggins [1967] 1 WLR 1223. It seems very likely that they
will continue to do so in future.
There are several reasons as to why a defendant might wish to adduce evidence of a co-
defendant’s bad character. One classic example would be where he is running a ‘cut throat’
defence, blaming the other defendant for the offence with which he stands accused, and wishes
to adduce the co-defendant’s bad character to suggest that his propensity to misconduct makes
it more likely that he was the sole perpetrator of the crime. For example, where a defendant, of
previous good character, facing a count of murder, wishes to suggest that his co-defendant was
entirely responsible for the killing, and to support such a claim by adducing the co-defendant’s
extensive criminal record for offences of serious violence (a distant record for minor assaults
might not satisfy the quality threshold).
Thus, in Ibrahim Musone v The Crown [2007] EWCA 1237, it was held that where two prison
inmates were accused of murdering a third prisoner in his cell with a knife, and were running
‘cut-throat’ defences (blaming each other for the crime), one of the defendants was allowed to
adduce evidence of an earlier murder, allegedly perpetrated by his co-accused, to suggest that
it was more likely that he (the co-accused) had inflicted the fatal wound. This was because the
earlier killing was considered to have substantial probative value with regard to an important

matter in issue between the two co-defendants (ie who was more likely to be violently homi-
cidal), and so was admissible under s. 101(1)(e).
Ibrahim Musone v The Crown [2007] 2 Cr App R 29, CA
Moses LJ
Once evidence of a defendant’s bad character is admissible under s. 101(1)(e) the section confers
no express power on a court to exclude such evidence on grounds of unfairness, let alone imposing
any obligation to do so. Nor is there any power under s. 78(1) of the Police and Criminal Evidence Act
1984 to exclude the evidence since it is not evidence on which the prosecution proposes to rely.
In this situation, as s. 78 of the PCEA 1984 would not apply, the only thing that an implicated
co-defendant could do to avoid prejudice would be to rely on his right to a fair trial under Article 6
of the ECHR, and argue that allowing such evidence to be adduced would be contrary to his
human rights. If accepted, this argument might allow the provision to be interpreted, under s. 3 of
the Human Rights Act 1998, in a manner that was favourable to him. However, Ibrahim Musone
suggests that the courts are highly unlikely to be sympathetic to such an argument, because of the
initial, relatively restrictive prerequisites that must be satisfied before s. 101(1)(e) will apply.
Ibrahim Musone v The Crown [2007] 2 Cr App R 29, CA
Moses LJ
We do not think that it is possible to identify a power to exclude evidence which, ex hypothesi, has
substantial probative value, in reliance on Art. 6. The question whether such a power exists only
arises in circumstances where the court has already concluded that the evidence of the defend-
ant’s bad character does have substantial probative value in relation to a matter of substantial
importance in the context of the case as a whole. Once substantial probative value has been
established it is difficult to envisage circumstances where it would be unfair to admit evidence of
that quality, subject to the procedural protection contained in the Rules. That is reflected in the
structure of the section itself which excludes from the scope of s. 101(3) evidence of substantial
probative value in relation to an important matter. In short, it is difficult to envisage room for invok-
ing the right to a fair trial enshrined in Art. 6. Once the judge concluded that the evidence was
of substantial probative value, he had no power, absent the application of the rules made under
s. 111, to exclude the evidence on the basis that to admit it would be to infringe Chaudry’s right to a
fair trial under Art. 6. The only apparent control on the deployment of evidence by one defendant
against another is that which is contained in s. 101(1)(e). Admissibility rests solely on the court’s
assessment of the probative quality of that evidence.
53 We conclude that the judge erred in purporting to exercise a power to exclude evidence
which reached the standard imposed by s. 101(1)(e) for admissibility. Admissibility under that sub-
section depends solely on the quality of the evidence. The judge had no power under that section
to exclude the evidence on the grounds of unfairness.
Similarly, in Johnson v R [2007] EWCA Crim 1651, it was held that, on a charge of importing
cocaine, where two defendants were running cut-throat defences, each putting all the blame

for the offence on the other, a single, recent, previous conviction for possession of the same
drug could be adduced, on the grounds that it had substantial probative value in relation to
an important matter in issue between the co-defendants (who was more likely to be dealing in
cocaine) and so was admissible under s. 101(1)(e). There are, however, other possible situations
in which an accused person might wish to adduce a co-defendant’s previous bad character.
Most importantly, and returning to the cut-throat defence situation, a defendant blamed by
their co-defendant for a crime might wish to adduce the co-defendant’s record for offences of dis-
honesty to suggest that their allegations are not credible (ie he has fabricated his evidence). This
produces a much closer parallel with s. 1(3)(iii) of the 1898 Act. Section 104 of the 2003 statute
permits the admissibility of evidence of a defendant’s bad character, under s. 101(1)(e), that merely
shows that he has a propensity to be untruthful (ie is not credible as a witness): ‘. . . only if the
nature or conduct of his defence is such as to undermine the co-defendant’s defence’. Obviously,
in such a situation, his credibility will become highly relevant to the issues in the case.
No guidance is given in the new statute as to the meaning of ‘undermine’. It may be that, in
these circumstances, the extensive body of case law that developed on whether a co-defendant
had given evidence ‘against’ a defendant under the 1898 Act will continue to be of some (albeit
limited) significance. Thus, in Murdoch v Taylor [1965] AC 574, the House of Lords defined it as
evidence: ‘. . . which supports the prosecution’s case in a material respect or which undermines
the defence of the co-accused’. The court made it clear that the co-defendant’s motive (the pres-
ence or absence of hostile intent) was irrelevant. Cases since this decision have explored the
issue further. Some of these may still be relevant when interpreting the new statute, though it
is likely that the courts will also be mindful of Lord Bingham’s observation, in R v Crawford
[1997] 1 WLR 1329, that: ‘The words used in the [1898] statute are simple and readily intelligible.
There is . . . a danger in over-complicating what we feel sure was intended to be an easily applic-
able test.’ Future decisions are likely to turn on the facts of each case rather than implementing
set formulae.
There will also be a question as to what is meant by ‘relevant’ to a ‘propensity to be untruth-
ful’. Strictly construed, this might be limited to convictions for perjury, offences of deception
and situations in which a defendant has been convicted after pleading not guilty and testifying
in his own defence. This is the approach taken to untruthfulness with regard to s. 101(1)(d), in
cases such as Hanson. However, it seems that an application by the prosecution under s. 101(1)(d)
is viewed differently to one made by a co-defendant under s. 101(1)(e), and different considera-
tions will sometimes apply.
Thus, in one of the cases considered by the Court of Appeal in R v Edwards (Stewart) and
others [2006] 2 Cr App R 4, the prosecution was refused permission at the start of the trial to
adduce a defendant’s previous convictions for violence, under s. 101(1)(d), when he was tried
on a count of wounding with intent. However, the following day, the same judge acceded
to a co-defendant’s application to allow cross-examination on the same convictions under
s. 101(1)(e) when he ran what was effectively (if not explicitly) a cut-throat defence. The deci-
sion was upheld on appeal. When it comes to untruthfulness under s. 101(1)(e), it seems that
a broader range of offences of dishonesty may be adduced.
R v Edwards (Stewart) and others [2006] 2 Cr App R 4, CA

Scott Baker LJ
The judge correctly directed himself that he first had to decide whether there was an important
matter in issue between the two defendants and secondly whether the bad character had a

substantial probative value. He referred to R. v Price [2005] Crim.L.R. 304 as illustrating that the
propensity to violence of D1 may be relevant as making it less likely that the offender was D2. It
was important which of McLean or Saunders was more likely to have been O’Toole’s assailant and
the fact of McLean’s s. 18 conviction was of substantial probative value: see R. v Weir and Others
[2006] 1 Cr.App.R. 19 (p. 303), para. [120].
51 The judge concluded that although this was not perhaps a cut-throat defence in the classic
sense, their separate versions of what had occurred created an important issue between them.
This seems to us to be plainly correct. Each individual tells an entirely different story as to what
went on. Mr Stanniland, for McLean, sought valiantly to distinguish between important issues
and ancillary issues, his argument really coming to this: that although there was a series of ancil-
lary issues between the defendants there was no important issue. We remind ourselves that
‘important matter’ is defined in s. 112 as a matter of substantial importance in the case as a whole
and this, as Sir Igor Judge P. pointed out in R. v Renda and Others [2006] 1 Cr.App.R. 24 (p. 380)
para. [3], is very much a matter for the ‘feel’ of the judge. The judge went on to consider whether
the previous convictions of McLean had substantial probative value as to the issue between the
defendants. He said it seemed to him that if each defendant was saying he was not involved in
the violence, and one has previous convictions for violence, that must have substantial probative
value on the issue between them. 52 Mr Stanniland argued that the judge’s ruling against him was
even more perverse when one took into account that s. 101(1)(e) provided a more stringent test
than s. 101(1)(d) and yet he had admitted the evidence under the former but not the latter. We are
not, however, persuaded by any of Mr Stanniland’s grounds. The judge applied the correct test
and, contrary to Mr Stanniland’s third ground of appeal, the bad character evidence did, in our
view, have substantial probative value. The appeal is accordingly dismissed. 53 Before leaving
this case we make two further comments. It was not a case where the judge had any discretion to
refuse to admit the evidence under s. 101(3) and, in fairness, it was never suggested that he had.
Once the s. 101(1)(e) gateway was open the evidence was in. Nor did s. 104(1) apply because the
issue was propensity to violence not a propensity to untruthfulness.
Balancing the rights of co-defendants is inherently difficult. One accused person’s interests are
often protected at the expense of another’s. At least the old regime, under which the courts were
not required to mediate between co-accused once one had undermined the other’s defence,
spared judges any risk of being accused of partiality.8 The 2003 Act attempts to strike a balance
by permitting the adduction of evidence of a co-defendant’s earlier misconduct where it is of
substantial probative value to do so. Inevitably, however, there will be appeals as to where this
line is drawn, especially in finely balanced cases. Defendants who have been refused permission
to adduce evidence of a co-accused’s previous, relevant, convictions, on the ground that they
are not of sufficient value, may seek to argue that their right to a fair trial, enshrined in Article 6
of the ECHR, has been breached.

Do yyou
ou feel that trial judges
judgeg s should be requ
required
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What
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stic alternatives?
ic aalt
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8
R Munday, ‘Cut-Th roat Defences and the “Propensity to be Untruthful” under s. 104 of the Criminal Justice
Act 2003’ [2005] Crim LR 623–637, at 636.

Section 101(1)(f)
Under s. 101(1)(f) evidence of a defendant’s bad character can be adduced to ‘correct a false
impression given by the defendant’. This has obvious parallels with the old statutory regime,
and the Law Commission freely accepted that it covered ‘similar ground’ to that of the ‘good
character’ exception under the ‘first limb’ of s. 1(3)(ii) of the 1898 Act, whereby a defendant
would lose his ‘shield’ from cross-examination on his convictions if he: ‘. . . asked questions of
the witnesses for the prosecution with a view to establish[ing] his own good character, or has
given evidence of his good character’.
The new section also has parallels with the common law position, both before and after the
1898 Act, under which the Crown could rebut an unfounded claim to good character, even if
the defendant failed to testify, as in R v Rowton (1865) 34 LJMC 57. The sub-section applies
whether a defendant has given evidence or not, and thus replaces both existing provisions.
In Hanson it was held that, given the similarities between s. 101(1)(f) and the ‘first limb’ of
s. 1(3)(ii) of the 1898 Act, some of the old cases on the latter provision might be of continuing
significance.
Guidance on the operation of the new provision is given in s. 105(1)(a), which provides that
an accused person falls within its ambit if he is responsible for making an ‘express or implied
assertion which is apt to give the court or jury a false or misleading impression about the defend-
ant’. The use of ‘implied’ indicates that the approach already taken under the 1898 Act will be
followed under the new statute. Thus, and for example, in the old case of R v Ferguson [1909]
2 Cr App R 250 a claim that the accused regularly attended mass was held to be an implied
assertion of good character.
If a ‘false impression’ is given under the new Act, the Crown can call evidence in rebuttal,
though this must have ‘probative value in correcting it’ under s. 105(6). Consequently, and as
the Commission intended, the common law rule on the indivisibility of character, set out in
R v Winfield [1939] 4 All ER 164, has been abolished. Prior to the 2003 Act, a man accused of an
indecent assault, who called evidence with regard to his good character vis-à-vis sexual moral-
ity, could be cross-examined about convictions for dishonesty as, in the words of Humphreys J,
there was: ‘. . . no such thing known to our procedure as putting half your character is issue and
leaving out the other half’. This ceases to be the case.
Thus, if a man who is accused of assault claims to be as ‘gentle as a lamb’ his previous
convictions for offences of dishonesty will probably not be adduced. Additionally, evidence
admissible under s. 101(1)(f) must go no further than is necessary to correct the false impres-
sion. This, too, allows for selective revelation. For example, it would seem that if the same
assault defendant had a murder conviction and also several lesser convictions for offences
of violence, it might be considered that adducing his assault convictions would be sufficient
to correct the false impression, without resorting to the damning prejudice occasioned by
establishing the murder conviction. Alternatively, an agreed (by prosecution and defence)
formula of words, admitting previous offences of violence without going into details, could
be employed.
This selectiveness about the adduction of past crimes can be seen in R v Campbell [2007]
2 Cr App R 28, where the defendant, accused of assaulting his girlfriend, had numerous previ-
ous convictions, for a variety of offences, including violence, dishonesty and criminal damage,
reaching back over 20 years. However, at trial, only two previous and recent convictions for
assaulting former or current girlfriends were admitted, pursuant to s. 101(1)(d), being adduced
on the issue of the defendant’s propensity to use violence towards women.

R v Campbell [2007] 2 Cr App R 28, CA
Lord Phillips CJ
The question of whether a defendant has a propensity for being untruthful will not normally be
capable of being described as an important matter in issue between the defendant and the pros-
ecution. A propensity for untruthfulness will not, of itself, go very far to establishing the committal
of a criminal offence. To suggest that a propensity for untruthfulness makes it more likely that a
defendant has lied to the jury is not likely to help them. If they apply common sense they will con-
clude that a defendant who has committed a criminal offence may well be prepared to lie about
it, even if he has not shown a propensity for lying whereas a defendant who has not committed
the offence charged will be likely to tell the truth, even if he has shown a propensity for telling lies.
In short, whether or not a defendant is telling the truth to the jury is likely to depend simply on
whether or not he committed the offence charged. The jury should focus on the latter question
rather than on whether or not he has a propensity for telling lies.
For these reasons, the only circumstance in which there is likely to be an important issue as to
whether a defendant has a propensity to tell lies is where telling lies is an element of the offence
charged. Even then, the propensity to tell lies is only likely to be significant if the lying is in the con-
text of committing criminal offences, in which case the evidence is likely to be admissible under
s. 103(1)(a).
Section 105(2)(a) deals with the various situations in which a defendant is to be treated as being
responsible for giving such a false impression. Unsurprisingly, this occurs when it is given in person
during the proceedings (whether during examination in chief or cross-examination). However,
it also includes situations in which it is made by the defendant in an out of court statement that is
adduced into evidence. Theoretically, this could mean that, in some cases, what the accused actu-
ally does at trial will have no bearing on whether his bad character is revealed. Additionally, the
defendant will be held responsible for an assertion that is made by another witness called by him,
or by any other witness (ie even one called by the prosecution or a co-defendant) in response to a
question asked by the defendant or his counsel that is ‘intended to elicit it, or is likely to do so’.
Nevertheless, under s. 105(3) a defendant who would otherwise be treated as responsible for
an assertion made by another witness will avoid adverse consequences if he withdraws it or
disassociates himself from it. To some extent, this provision builds on the position at common
law laid down in R v Redd (1923) 1 KB 104, which suggested that an attribution of good char-
acter by a witness, if made spontaneously and entirely unsolicited by the defendant, would not
constitute a claim to good character within the terms of s. 1(3)(ii) of the 1898 Act.
However, under the 2003 Act, the defendant will also actively have to take steps to dissociate
himself from the statement. Exactly how this will be done is still not entirely clear. Thus, if a
defence witness blurts out, without any prompting, that the accused man is a ‘saint’, will the
defendant have to state explicitly that he is not a saint? In R v Renda and others [2006] 1 WLR
2948, it was held that a concession extracted in cross-examination from a defendant, to the
effect that he was not telling the truth in his examination in chief as to his claimed good char-
acter, would not normally amount to a withdrawal or disassociation from the original assertion
for the purposes of s. 105(3).
Provision is also made in the new Act for non-verbal impressions, the position of which
was uncertain at common law (the Law Commission concluded that they fell outside the old
regime). Thus, under s. 105(4), where it appears to the court that a defendant: ‘. . . by means of
his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court

or jury an impression about himself that is false or misleading, the court may if it appears just
to do so treat the defendant as being responsible for the making of an assertion which is apt to
give that impression’. Further guidance is given on what this means by s. 105(5), which provides
that in s. 105(4) ‘conduct’ includes appearance or dress.
This section addresses the problems occasioned by a long line of cases, such as that involving
a defendant’s regimental blazer in R v Hamilton [1969] Crim LR 486. As a result, a witness who,
while in court, engaged in exaggerated clutching or kissing of a Bible, Koran or religious emblem,
the wearing of some form of clerical dress (especially if not in holy orders) or who ostentatiously
resorted to prayer, might be treated as if he had made a claim to good character. Consequently,
it seems that cases such as R v Robinson [2001] EWCA Crim 214, in which a defendant who had
overtly brandished a Bible while giving testimony was held not to have made a claim to good
character under the 1898 Act, are unlikely to be followed under the CJA 2003.
Although the exclusionary discretion contained in s. 101(3) only applies to grounds (d) and
(g) of s. 101(1), in Weir, the Court of Appeal noted that s. 78 of the PCEA 1984 provides trial
judges with a discretion to exclude evidence that is prima facie admissible under s. 101(1)(f),
as it applies to all prosecution evidence. However, given that the decision to claim a false good
character is often gratuitous, unlike ‘attacks’, which may be necessary to provide a defence, it
may be that the discretion will be exercised fairly circumspectly in such cases.
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R v Antony Weir & Others [2006] 1 Cr App R 19, CA
Kennedy LJ
We note that the provisions of section 101(3) do not apply to subsection (1)(f), and we see no reason
to doubt that section 78 of the 1984 Act should be considered where section 101(1)(f) is relied upon
(see the judgement of Lord Woolf CJ in Highton and otherss [2005] EWCA Crim 1895 at paragraph
13, and the views of Professor Spencer at paragraph 21 of the paper to which we have already
referred). In this case for the reasons which we have already given when dealing with the applica-
tion of section 101(3) to section 101(1)(d) we do not see any way in which, in relation to subsection
(1)(f), section 78 would assist the appellant.
Nevertheless, and in the same way that s. 1(3)(ii) of the 1898 Act was interpreted in Malindi v
R [1967] 1 AC 439, it seems that if the alleged claim to good character was made as an integral
part of the allegation which has come to court, and is narrated to the court as an inherent part
of that incident, it will not be viewed as opening the gateway in s. 101(1)(f). For example, if a
defendant in an assault case, with previous convictions, were to testify that, when approached
by the alleged victim of the crime and challenged to a fight, he initially replied, ‘I am a God fear-
ing man of peace’ this would not necessarily be treated as a claim to good character at trial.

Thus, in R v Ifzal Iqbal [2006] EWCA Crim 1302, the Court of Appeal held that an explan-
ation by the defendant as to why his DNA might have been found on a package containing her-
oin, and which had been interpreted at trial as an unwarranted claim to good character, was a
fundamental defence contention and as such did not invoke s. 101(1)(f).
R v Ifzal Iqbal [2006] EWCA Crim 1302, CA
Diehl H
Gateway (f): ‘evidence to correct a false impression given by the defendant.’ The learned Judge
seems have said that the two previous convictions were possibly admissible through this gate-
way. The short submission on behalf of the appellant is that, at the stage when the Judge made his
ruling, the appellant had not given any false impression. We have reminded ourselves of the terms
of section 105 of the Act, more particularly (1) and (2). The respondent argues that the appellant’s
defence statement provided pursuant to section 5 of the Criminal Procedure and Investigations
Act 1996 contains or may contain an express or implied assertion giving the court or a jury a mis-
leading impression about him. Reference was made to assertions contained in that document
which gave the appellant’s explanation for his DNA being deposited quite innocently on this knot-
ted package which contained heroin. Even if what is contained in a defence case statement can
amount to an assertion made by a defendant in the proceedings, the document in reality is setting
out the contentions of the defence in relation to a fundamental issue in the case, the nature of his
defence and the matters of fact upon which he takes issue. This, in the court’s judgment, is not an
impression about him, let alone a false or misleading one without begging the very question which
the jury would have to determine.
Section 101(1)(g)
Section 101(1)(g) deals with those situations in which the defendant has made an ‘attack on another
person’s character’. Once again, close parallels can be seen between this sub-section and the ‘sec-
ond limb’ of s. 1(3)(ii) of the 1898 Act, which provided that the shield would be lost if the: ‘. . . nature
or conduct of the defence is such as to involve imputations on the character of the prosecutor or
the witnesses for the prosecution; or the deceased victim of the alleged crime’. However, there
are also important differences. For example, at common law, imputations could usually be made
quite safely against those who were not prosecution witnesses, as in R v Lee [1976] 1 WLR 71.
By contrast, the new provisions are not limited in this way. Thus, in theory, a man accused of
theft from his employer, who blames the crime on a workmate who is not present at court, can
still put his character in jeopardy. The section also ends the old common law position by which
a defendant who attacked a prosecution witness through his advocate, but did not himself give
evidence, was safe from the adduction of his previous bad character, as in R v Butterwasser
[1948] 1 KB 4.
In practice, much will depend on the circumstances of the individual case. Section 101(1)(g)
will not invariably be applied where there has, technically, been some kind of ‘attack’. For a
very crude and extreme example, judges would be likely to ignore a spontaneous outburst
against the Queen by a defendant of Republican sympathies, or, alternatively, would automatic-
ally exercise the discretion under s. 101(1)(3) or s. 78 of the PCEA 1984 to prevent his bad

character being adduced in such a situation, even though it would (arguably) fall within the
provision.
Some additional clarity to this situation was provided in R v Nelson [2007] Crim LR 709. In
this case, the defendant, while being questioned by the police on an aff ray charge, had stated
that his neighbour was a liar and a user of class A drugs. As it transpired, the neighbour did not
give evidence at the defendant’s trial. However, the first instance judge held that there had been
an attack on the character of another, which fell within the terms of s. 106(1)(g) of the Act. As a
result, the accused man’s previous drugs convictions were adduced.
In Nelson the Court of Appeal noted that the wording of the 2003 Act clearly covered the
instant case, as there was no longer a need for the subject of the imputations to be a witness
(unlike the situation under the 1898 Act). However, the court also noted that, in such situations,
a trial judge still had a discretion (under s. 78 of the PCEA 1984) to prevent cross-examination on
bad character where the accused had merely made imputations about the character of someone
who was a non-witness and non-victim. Normally, though not invariably, the Court of Appeal
concluded, it would be unusual to allow cross-examination in such a situation. However, in the
instant case, where there was a suggestion that the neighbour had conspired with the alleged
victim to fabricate evidence, and where this might have affected the way in which a juror viewed
the victim’s evidence, it would have been appropriate (had the evidence of the police interview
properly been placed before the jury). The Court of Appeal also concluded that it would be
wrong for the prosecution to adduce evidence of a largely irrelevant out of court interview,
simply as a way of invoking s. 101(1)(g).
R v Nelson [2006] EWCA Crim 3412, CA
Keene LJ
We take the gateway aspect of the case first. There is no doubt that the wording of section 101(1)(g),
‘an attack on another person’s character’, does not confine that gateway to the situation where a
defendant, personally or through his advocate, attacks the character of a prosecution witness. It
goes beyond the wording used in the earlier statutory provision which dealt with this area of law,
namely section 1(3) of the Criminal Evidence Act 1898 , which by paragraph (ii) referred to ‘impu-
tations on the character of the prosecutor or the witnesses for the prosecution or the deceased
victim of the alleged crime’. Apart from the case where there was a deceased victim, the earlier
statutory provision effectively confined this basis for admitting evidence of a defendant’s bad
character to situations where there had been an attack during the trial on the character of a pros-
ecution witness, including a person whose statement was read at trial. It did not extend to cases
where the defendant attacked the character of a non-witness, save that of a deceased victim (see
the decision in R v Lee (1976) 62 Cr App R 33 ).
15 That has been changed by the 2003 Act, which simply refers to ‘an attack on another person’s
character’, apparently irrespective of whether that person is a witness at trial. It must be taken, in
our view, as Parliament’s intention deliberately to widen the gateway in this fashion. Nonetheless,
we would emphasise that the trial judge still has a discretion as to whether the jury should hear
about a defendant’s bad character when he has merely made imputations about the character
of a non-witness. Not only does he have such a general discretion under section 78 of the Police
and Criminal Evidence Act 1984 , but section 101(3) of the 2003 Act specifically provides that: ‘the
court must not admit evidence under subsection (1)(d) or (g) if on an application by the defendant
to exclude it it appears to the court that the admission of the evidence would have such an adverse
effect on the fairness of the proceedings that the court ought not to admit it’.

16 How the trial judge exercises that discretion is a matter for him or her, but it seems to this
Court that it would be unusual for evidence of a defendant’s bad character to be admitted when
the only basis for so doing was an attack on the character of a non-witness who is also a non-victim.
The fairness of the proceedings would normally be materially damaged by so doing.
The new Act defines ‘attacking the other person’s character’ to mean suggesting that the other
person has either committed an offence or behaved, or is disposed to behave, in a ‘reprehensible
way’. As a result, the same meaning will be given to the latter word as for defendants. Thus, in
R v Weir and Others [2006] 1 Cr App R 19, a defendant who accused a rape complainant who
was a member of his former congregation at a Hindu Temple of being ‘not a witness of truth’,
and who claimed that her allegation was part of a conspiracy of fabrications, was held to have
made an attack.
In Bovell the court also suggested that, as with the old regime, if a complainant’s conviction
had been adduced by a defendant, bringing it up would have amounted to an ‘attack’ for the
purposes of s. 101(1)(g), one that would have justified the adduction of the accused man’s own
extensive list of convictions, in turn. Similarly, in Dowds, the defendant had claimed that a
co-accused who had already pleaded guilty to a burglary for which he was standing trial had
committed another burglary the previous day. This was deemed to be enough to put his char-
acter in issue under the provision. In like manner, in R v Renda and others [2006] 1 WLR 2948,
it was held that comments that suggested that the victim of a crime would consent to sexual
intercourse with anyone, and that any refusal on her part of consent could be disregarded as
meaningless, constituted an attack on her character.
For the purposes of s. 101(1)(g), a defendant makes an attack on another’s character if he
adduces evidence that has that effect, asks questions in cross-examination that are intended
or likely to elicit such evidence, or (as already noted) if evidence is adduced of an out of court
imputation made by the defendant about that person. As a result, an attack can be made
during a police interview, not just when giving evidence at trial (unlike the old situation under
s. 1(3)(ii)). For example, in Pickering, the applicant was indicted on two counts of indecent
assault and three counts of rape, the victim being his young daughter. At trial, the judge admit-
ted the defendant’s conviction for indecently assaulting an 11-year-old girl in 1993 under (inter
alia) s. 101(1)(g) on the basis that at interview he had asserted that the girl’s claim was a false
allegation aimed at having him removed from the family home, so that she could return to it
from foster care. This was held to amount to an attack on the complainant’s character within
s. 106(1)(c)(i) and s. 106(2)(b).
The Law Commission had intended that any new statutory regime should avoid the distor-
tions to the trial process occasioned by the existing rules on imputations under the 1898 Act.
For example, that a defendant alleged to have made extensive admissions to investigating police
officers would necessarily have to suggest that they had fabricated them to have any real defence
and thus, if he had previous convictions, would be obliged to lose his shield under the 1898 Act
(subject to an exercise of the judicial discretion), as in R v Britzman and Hall [1983] 1 WLR
350. Similarly, in R v Chinn (1996) 160 JP 765, the appellant, who was accused of assaulting a
publican occasioning actual bodily harm, lost his shield by claiming to have been acting in self-
defence, although this was the only realistic option open to him.
This could have serious tactical consequences under the old law, as defendants running such
defences might refrain from giving evidence altogether to avoid cross-examination on their crim-
inal records. The Commission proposed to avoid such problems by making anything said within

a ‘central set of facts’ immune from the new rules on imputations. This was reflected in their draft
Criminal Evidence Bill, at clause 9(2)(a)(i–ii), which excluded from the ambit of ‘imputations’ any
evidence to do with: ‘. . . the alleged facts of the offence with which the defendant is charged, or
evidence of misconduct in connection with the investigation or prosecution of that offence’.
However, the 2003 Act did not contain such a provision, which meant that there was nothing
to preclude the traditional approach from being followed. Despite this, some decisions under
s. 1(3)(ii) of the 1898 Act during the last decade of its operation indicated an increased degree
of judicial sympathy and realism towards defendants in this situation: R v Wignall [1993] Crim
LR 62. Arguably, judges now have the power under the 2003 Act to take this process further by
exercising the discretion contained in s. 101(3) to prevent such attacks leading to the adduction
of a defendant’s bad character, provided they are necessary to his case and go no further than is
required to establish his defence. This might be especially likely if the misconduct is old, a factor
that is expressly drawn to the court’s attention under s. 101(4).
Even so, the facts of Pickering and other recent cases on this area of the law appear to sug-
gest that a revolution in judicial practice is unlikely. Indeed, the court in Pickering concluded
that some of the pre-2003 Act authorities on ‘imputations’ in the ‘second limb’ of s. 1(3)(ii) of
the 1898 Criminal Evidence Act will continue to apply, when assessing whether an ‘attack’ has
been made on another person’s character under s. 101(1)(g), at least to the extent that they are
compatible with s. 106 of the new statute.
As a result, it seems that judges will consider that the necessity for a defendant to make an attack,
to have a defence at trial, is merely one factor to be considered amongst others when making a
decision on the exercise of the discretion, just as it was under the 1898 statute, and certainly not
conclusive of the issue. Indeed, a month after Hanson, the Court of Appeal, considering the case of
R v Dowds [2005] 2 Cr App R 27, observed that when deciding whether there has been any ‘adverse
effect on the fairness of the proceedings’ that would justify exercising the discretion under s. 101(3)
not to admit bad character evidence, the defendant’s motive or intention in making an attack
(rather than its effect) was not a relevant factor that would warrant investigation by the trial judge.
Nevertheless, in R v Singh (James Paul) [2007] EWCA Crim 2140, Hughes LJ expressly noted
that, when it came to exercising the discretion contained in s. 101(3), with regard to an ‘attack’
that had brought s. 101(1)(g) into play, and as with the old law, it was relevant (though certainly
not conclusive) to consider whether ‘an attack on the complainant is an entirely gratuitous
one’ (though, this was not relevant to the initial decision as to whether the gateway under
s. 101(1)(g) had been opened).
In Singh, the defendant, accused of robbery, made an (undisputed) attack on the complainant
by stating that he (the complainant) had been smoking crack and had, effectively, fabricated evi-
dence. The accused man had previous convictions for disorder, harassment, assaulting a police-
man, drink driving and criminal damage. When refusing to exercise the discretion contained
in s. 101(3), to refuse to allow the defendant’s convictions to be adduced, Hughes LJ, giving judg-
ment in the Court of Appeal, made a number of other important points about this gateway.
R v Singh (James Paul) [2007] EWCA Crim 2140, CA
Hughes LJ
As to the first of those arguments it may be relevant to the exercise of discretion if an attack on the
complainant is an entirely gratuitous one. Gateway G is, however, not limited to such cases and the
question is not relevant to whether the gateway is passed. The purpose of gateway G is to enable

the jury to know from what sort of source allegations against a witness (especially a complainant
but not only a complainant) have come. This court has said on more than one occasion that the
new rules for the admission of bad character evidence do not mirror the former law and argument
from the former law is usually unhelpful. We have, however, no doubt whatever that gateway G was
formulated with the former law under the Criminal Evidence Act 1898 in mind. It was well estab-
lished then that the fact that an attack on a witness was necessarily involved in the case which
the accused chose to make was no reason not to enable the jury to assess the reliability and the
truthfulness of that case by seeing the full nature of the source from which the allegation comes.
We are sure that the same approach is implicit in gateway G. That Mr Marklew was duty-bound to
put the questions that he did to the complainant and that he did his duty once his instructions from
the defendant were as they were is nothing to the point.
As to the second argument, gateway G does not depend upon propensity to offend as charged
or upon propensity to be untruthful in the sense of having a track record for untruthfulness. The
purpose that it has is the one which we have identified. Of course it is well established that if a
defendant’s bad character admitted because gateway G has been passed does also go to show
propensity to offend as charged or to be untruthful it is open to the jury to use it for the relevant
purpose. For that see R v Highton and Others [2005] EWCA Crim 1985; [2006] 1 Crim App R 7 That,
however, is not this case and such has not been suggested. It does not, however, follow, that it is
admissible only if it also shows one or other of those propensities. To say that would be tantamount
to saying that evidence which is admissible through gateway G ought to be excluded as a matter of
discretion unless it also passes gateway D. There is clearly no warrant in the statute for construing
it in that way—just the reverse. The Act plainly demonstrates that the gateways are independent,
although of course in some cases more than one of them may be passed. The argument which we
are addressing would, if accepted, deprive gateway G of much of its application.
The second argument was effectively encapsulated in the proposition that the appellant’s
convictions were irrelevant to his credibility. We do not think that they were. They may not have
been such as to demonstrate a track record for untruthfulness. They would not have been inde-
pendently admissible under gateway D if there had not been the attack on the credibility of the
complainant that there was. But the attack on the complaint had been made. The relevance of
the attack was that if it was true it provided a reason why the complainant should be disbelieved.
When the jury was assessing the evidence of the two main parties to this trial it was judging the
complainant’s credibility against that of the accused. The attack having been made, it was en-
titled to have regard to the source from which came the accusations which might affect the jury’s
judgment of the complainant. It would be wholly artificial to say that this information about the
appellant went to whether he was to be believed in what he said about the complainant being a
user of crack cocaine and not to whether he was believed in what he said about how the complain-
ant came to be parted from his chain and his mobile phone. We think that it is perfectly plain that,
once admitted under gateway G, bad character evidence does go to the credibility of the witness
in question. That accords with common experience. It is, among other things, the obverse of the
reason why a defendant is entitled to plead his own good character in support of his claim that he
should be believed. The reason why he is entitled to do that is because ordinary human experience
is that people of proven respectability and good character are, other things being equal, more
worthy of belief than those who are not. Conversely, persons of bad character may of course tell
the truth and often do, but it is ordinary human experience that their word may be worth less than
that of those who have led exemplary lives. Once gateway G is passed the consequence of the
defendant’s bad character falls to be weighed with all the other evidence when the jury decides
whether or not he has been proved to be guilty, and in doing so it may think him less worthy of
belief because of his history. We ought to add that what is in issue here in relation to the exercise of
discretion is of course whether this court should interfere with the judge’s conclusion. This court

will not interfere with the exercise of the judge’s discretion under section 101(3) any more than it
would under section 78 of the Police and Criminal Evidence Act or similar provisions unless the
judge has either misdirected himself or had arrived at a conclusion which is outside the legitimate
band of decisions available to him.
It seems that the principles laid down by the Court of Appeal in R v McCleod [1994] 3 All ER
254 as to the (very limited) scope of cross-examination on the underlying details of previous
convictions of a defendant who had made imputations on the character of Crown witnesses for
the purposes of s. 1(3)(ii) of the 1898 Evidence Act, will not automatically be followed under the
2003 Act. Under the old regime, it was generally thought that as such cross-examination went
to credit, not propensity, under a ‘tit for tat’ principle, prolonged cross-examination as to the
details of previous convictions was normally undesirable. It risked their being treated as ‘back
door’ similar fact evidence. By contrast, where a propensity direction is likely to be given to bad
character evidence admitted under s. 101(1)(g), as Highton makes clear can be done in appro-
priate circumstances, such detail may well be entirely justified.
Nevertheless, the amount of character evidence adduced under the provision can be restricted
by a first instance judge, just as it can under s. 101(1)(f). Thus, in a recent case, involving an
application to adduce bad character made under s. 101(1)(g), with regard to a defendant accused
of assault, older convictions for serious offences of dishonesty were adduced, more recent con-
victions for offences of violence were not: R v Edwards (Karl) and others [2006] 1 Cr App R 3.
Even so, and as Weir indicates, this will not invariably be the case.
Kennedy LJ
We turn now to the final gateway provision relied upon, namely that the appellant at interview
and thereafter made an attack on the complainant’s character (section 101(1)(g)). Mr Kovalevsky
accepts that he did so, but he submitted that the opening of that gateway should not be regarded
as rendering all available evidence of bad character admissible. That is a somewhat difficult sub-
mission because in the first place it must be noted that section 105(6) has no application to section
101(1)(g), and, secondly, it is clear from the decision in Highton
n that once this gateway is open the
evidence admitted may be used not only in relation to credibility but also in relation to propensity.
In our judgment the attack on the character of the complainant clearly opens the door to all of the
evidence on which the prosecution sought to rely, subject to the requirements of section 101(3),
which we have already considered in relation to section 101(1)(d).
Other Statutes on Defendant Bad Character Evidence

A handful of older statutory provisions that permit the adduction of defendant bad charac-
ter evidence have survived repeal in the 2003 Act. Thus, s. 1(2) of the Official Secrets Act 1911
allows a defendant’s ‘known character’ to be adduced to suggest that he intended to act in a
manner that was prejudicial to the interests of the state. However, the most important of these
surviving specialist statutes is s. 27(3) of the Theft Act 1968. This historic provision (the statute

non-party witnesses and non-testifying third parties 221
had numerous precedents) allowed in evidence of a general propensity to commit offences of

dishonesty to establish that a defendant knew that items in his possession were stolen. Under
s. 27(3)(a) evidence of the accused handling other goods that were stolen not more than
12 months before the offence charged can be adduced on this issue, as can convictions accrued
during the previous five years for offences of theft or handling, provided the defence is given
seven days written notice: s. 27(3)(b).
Thus, in the House of Lords case of R v Hacker [1995] 1 All ER 45, the defendant was tried on
indictment with handling stolen goods (the body shell of a motorcar) in August 1991. The trial
judge allowed the prosecution to adduce in evidence, under s. 27(3)(b), a certificate establish-
ing the defendant’s conviction at a Magistrates’ Court, in May of the same year, for receiving a
stolen motorcar. Additionally, in Hacker, their Lordships concluded that when previous con-
victions are admissible under s. 27(3), s. 73(2) of the PCEA 1984 is also operative, so that the
substance of the previous certificate of conviction will be admissible.
Traditionally, s. 27(3) was strictly controlled by a robust exercise of the judicial discretion:
R v Perry [1984] Crim LR 680. Prosecution applications were often refused. However, given
that s. 27(3), where it operated, effectively ‘watered down’ the strict common law similar fact
doctrine on propensity evidence, and that this has now been liberalized generally by s. 101(1)(d)
of the CJA 2003, the provision’s future is uncertain. It may be that its use, already restricted, will
often be considered unnecessary.
4. Bad Character Evidence of Non-party

Witnesses and Non-testifying Third Parties
Criminal Cases
The CJA 2003 preserved the existing division between the character of witnesses who are
defendants (now governed by s. 101) and those who are not, who are subject to s. 100 of the
Act, as are third parties who do not appear at trial at all. At common law, and unlike the rela-
tively protected position of an accused person giving evidence, there were few legal constraints
against making allegations against third parties or on cross-examining non-party witnesses
on aspects of their ‘bad character’, though, since 1976, complainants in sexual cases have had
special statutory protection with regard to their sexual histories (now contained in s. 41 of the
Youth Justice and Criminal Evidence Act 1999).
Cross-reference Box
There
There
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who was deemed to be ‘promiscuous’. This led to the introduction of restrictions on the extent to
which a complainant could be cross-examined about her sexual history. For more information on
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pp 448–465.
p. 4
44848 –465
465.

The normal common law position respecting cross-examination as to credit was summarized
in the libel case of Hobbs v Tinling [1929] 2 KB 1, in which Scrutton LJ, sitting in the Court of
Criminal Appeal, suggested (in obiter comments) that a witness could be asked any question
about his character or previous conduct from which the court could infer that he was ‘not
worthy of belief, not a credible person’. This meant that s/he could be asked about previous
convictions and any reprehensible associations or way of life. Of course, such matters were
collateral and, subject to important exceptions, such as s. 6 of the Criminal Procedure Act
1865 (which deals with previous convictions and applies to both criminal and civil cases),
the witness’s answer could not be challenged by rebutting evidence, even if it was readily
available.
Cross-reference Box
The rule on the finality of answer to a question on a collateral matter (ie one that goes to a wit-
ness’s credit) is a common law rule that prevents a party to litigation from adducing evidence
show
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between collateral matters and issues can pose problems. For a detailed discussion of this subject
see pp. 436–440.
Subsequent judicial interpretation suggested that only relatively trivial questions about a wit-
ness’s bad character were exempt from being raised in court for this purpose. For example, in
the perjury case of R v Sweet-Escott [1971] 55 Cr App R 316, Lawton J, presiding at first instance,
decided that the defendant’s failure to own up to distant and minor convictions, committed
just after completing national service over 20 years earlier, was not ‘material’ to a trial in which
he had been a witness. He directed the jury to acquit and argued, again in obiter comments,
that a trial judge or magistrates should allow a line of questioning if they concluded that the
matter would not affect the witness’s standing with a ‘fair-minded’ tribunal of fact after cross-
examination. In this case, he felt that the magistrates before whom the defendant had originally
given testimony would not have been influenced by such petty and distant transgressions.
Some additional protection was provided by a 1975 Practice Direction (‘Crime: Spent
Convictions’ [1975] 1 WLR 1065), issued by Lord Widgery CJ, with the express encouragement
of Parliament, and intended to give effect to the rehabilitative ethos behind the Rehabilitation
of Offenders Act 1974 (the Act itself only expressly barred cross-examination on spent convic-
tions in civil proceedings, exceptional circumstances apart). This Practice Direction provided
that spent convictions should only be referred to in a criminal trial with leave of the presiding
judge. This should only be necessary if the ‘interests of justice so require’. Cases since then
have identified several situations in which this might occur, whether because the conviction[s]
affected the witness’s credit to a marked degree or went directly to the issue in the case. For
example, in R v Evans [1992] Crim LR 125, the Court of Appeal held that counsel should have
been allowed to cross-examine the chief prosecution witness in an assault case (where self-
defence was being advanced by the accused man) on her own spent convictions for violence,
which might have suggested that she was the attacker.
In recent years, as Lord Auld noted in his report of 2001, the Codes of Conduct regulating
both sides of the legal profession have also gone some way towards discouraging ‘oppressive’

questioning of witnesses.9 Thus, the Code of Conduct for the Bar of England and Wales provides
that counsel should not ask questions that are ‘merely scandalous or calculated only to vil-
ify, insult, or annoy’ the witness.10 The Law Society’s Code for Advocacy contains a similar
provision.
The common law latitude on cross-examination was (and is) also constrained by practical
considerations. Counsel will often only know about a witness’s previous convictions, not other
areas of reprehensible conduct in their lives. Additionally, in a multi-value society there may
be considerable public dispute as to what is meant by reprehensible or discreditable conduct.
Cross-examining witnesses about ‘transgressions’ that some people might not perceive as such,
has the potential to alienate the tribunal of fact, especially if it is a jury. For example, it is likely
that, in some cases, the fact that an independent eye witness to a ‘road rage’ incident was work-
ing as a prostitute at the time in question would not have much influence on many jurors’
assessment of her credibility, while questioning her about her lifestyle and occupation could
appear to them to be a sign of desperation in opposing counsel.
However, despite these restrictions (both legal and practical), and the limited degree to which
the issue has been explored judicially, the theoretical ambit of cross-examination at common
law remained very broad. This was heavily criticized on moral, practical and policy grounds.
The first line of argument tended to stress that it was not right that every indiscretion of a wit-
ness’s lifetime, however old or minor, should necessarily be exposed to public view. The second,
that although misconduct may affect general credibility this (unlike specific credibility) is often
of very limited value in assessing a witness’s testimony. The final argument is that gratuitously
allowing distressing and humiliating cross-examination contributes to the current, and very
marked, reluctance of witnesses to come forward or testify in criminal cases. Th is was a claim
that the Law Commission itself expressly accepted in its report, which in turn heavily influ-
enced the new legislation.11
As a result, the Commission concluded that before the bad character of non-defendants
(whether they were witnesses or not) could be adduced, it should satisfy a test of ‘enhanced
relevance’ and that this should cover not just bad character evidence that went to credibility but
also that which went to the issue in the case (if only to avoid the often difficult task of distin-
guishing between the two). It hoped that this would balance the rights and interests of both the
defendant and other witnesses.12 The new provision is contained in s. 100 of the CJA 2003.
Section 100 of the Criminal Justice Act 2003, Non-defendant’s

bad character
(1) In criminal proceedings evidence of the bad character of a person other than the defendant is
admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.
9
Sir Robin Auld, Review of the Criminal Courts of England and Wales, 2001, 527.
10
Code of Conduct of the Bar of England and Wales, 7th edn., in effect 31 July 2000, at para. 708(g).
11
Evidence of Bad Character in Criminal Proceedings, no 273, published 9 October 2001, at para. 9.20.
12
ibid. para 9.2.

(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand
other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
(3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court
must have regard to the following factors (and to any others it considers relevant)—
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
(c) where—
(i) the evidence is evidence of a person’s misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity
between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the
alleged instances of misconduct;
(d) where—
(i) the evidence is evidence of a person’s misconduct,
(ii) it is suggested that that person is also responsible for the misconduct charged,
and
(iii) the identity of the person responsible for the misconduct charged is disputed,
(e) the extent to which the evidence shows or tends to show that the same person was
responsible each time.
(4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than
the defendant must not be given without leave of the court.
Essentially, s. 100 allows non-defendants’ bad character to be adduced in three separate

situ ations. Uncontroversially, one of them, s. 100(1)(c), occurs where both parties agree to
the evidence being adduced; this is in keeping with the Act’s general trend towards agreed
evidence. Both of the other two ‘gateways’ to adducing bad character evidence require the
leave of the court: s. 100(4). Of these, the first, s. 100(1)(a), provides that bad character
evidence can be admitted if it is ‘important explanatory evidence’. Section 100(2) states
that for the purposes of s. 100(1)(a) evidence is important explanatory evidence if, with-
out it, the court or jury would find it impossible or difficult properly to understand other
evidence in the case, and, additionally, its value for understanding the case as a whole is
substantial.
Thus, s. 100(1)(a) covers, inter alia, situations in which the proposed evidence goes primarily
to the credit of the witness: R v Antony Weir & Ors [2005] EWCA Crim 2866. For example, not
knowing that an alibi witness has a very serious and recent history of offences of dishonesty
might make it ‘difficult properly to understand other evidence in the case’. Of course, some
bad character evidence will go to both credit and issue; thus, can be considered the situation
in which there is an alibi witness with a perjury conviction (something that also explains
the Commission’s reluctance to differentiate between the two when imposing an evidential
threshold).
The second provision, contained in s. 100(1)(b), provides that such evidence can also be
adduced if it has substantial probative value in relation to something which is both a ‘matter in
issue in the proceedings, and is of substantial importance in the context of the case as a whole’.
The Commission envisaged that this would cover situations such as that in which third parties

(not necessarily witnesses) were blamed for the offence for which the defendant stands trial. It
will also cover those situations in which a witness’s previous conduct is directly relevant to the
issues in the trial. Again, for example, this would cover the assault ‘victim’ with recent and ser-
ious previous convictions for violence, where there is a dispute as to who initiated a fight. In the
light of R v S (Andrew) [2006] 2 Cr App R 31, it also appears to extend to witness credibility.

Is it right that a co-defendant should have to meet such a qualitative threshold before he is allowed
adduce
to aadd
dduc
uce relevant
e re
rele
leva
vant evidence
nt e
evi
vide
denc
nce
e in h
his
is o
own defence?
wn d
def
efen
ence
ce??
In making the qualitative decision as to whether something was of ‘substantial’ importance, the
Commission proposed that a number of factors should be considered by the courts. These are
set out in s. 100(3), which provides, inter alia, that in assessing the probative value of evidence
for the purposes of s. 100(1)(b), the court must have regard to the nature and number of the
‘events or other things’ to which the evidence relates (ie convictions or other instances of ‘rep-
rehensible behaviour’), when they occurred, and, where relevant, the similarity between that
misconduct and other alleged misconduct.
Thus, under s. 100(3)(d), if a defendant were to suggest that a third party had been responsible
for the crime with which he was charged, as occurred, for example, in respect of a child murder in
R v Blastland [1986] AC 41, the court would have regard to the extent to which the evidence shows
that ‘the same person was responsible each time’. For example, in a murder case, if the killing that
the defendant was accused of had the singular hallmarks of an absent third party’s modus operandi
such evidence might well be admitted; if very different, it might not. Thus, a defendant accused of
murder where the victim was strangled with an electric cord might argue that the killing was the
work of a Mr Brown who lived locally at the time and subsequently transpired to be a serial killer
who always used such means to kill his victim. (This is obviously an extreme illustration.)
Although s. 100(3) is only directly linked to s. 100(1)(b), some of the factors identified will
also be relevant when considering applications under s. 100(1)(a). However, these factors are
also not exhaustive; others may be taken into account. In R v Eccleston [2001] EWCA Crim
1626, the Court of Appeal expressly noted (about the old regime for non-defendant witnesses)
that although circumstances are infinitely variable, the prime question was to determine how
relevant the information was to the defence of the accused.
In Eccleston, the court felt that it was highly significant to the question of admissibility that it
was not put to a witness with minor previous convictions that she was lying. The Law Commission
also suggested the importance of a direct allegation to that effect before such character evidence
could be adduced. In the light of this, and although not expressly identified as a prerequisite, it is
possible that before a court will find that bad character evidence going to credit is ‘important’ there
will have to be a direct assertion that the witness concerned has lied or fabricated their testimony.
Because the two provisions are close to those envisaged by the Law Commission in its draft
Criminal Evidence Bill, unlike several other aspects of the statute, some assistance as to its inter-
pretation can be drawn from the Commission’s earlier work. Obviously, and as already noted,
the new provisions are broad enough to cover both bad character evidence that goes to credit and
that which goes to issue. Additionally, and vitally, the words ‘important’ and ‘substantial’ make
it apparent that the Commission’s proposals for a test of ‘enhanced relevance’ have borne fruit.
The broad effect of the new provision is to tighten up the theoretical ambit of witness cross-
examination on bad character. As a result, it seems that cross-examination on bad character

evidence, whether to credit or issue, that, though technically ‘relevant’, is of minor cogency, will
not be permitted in future. Thus, in the hypothetical case of the ‘road rage’ incident, it seems
that cross-examining the eye witness as to her working as a prostitute would not normally be
permitted under the new Act.

Do you feel that a witness’s sensibilities should ever take pr
p
precedence
ecedence over a defendant’s righ
right
g t to
pursue
purs
pu rsue
ue h
his defence
is d
def
efen
ence vigorously
ce aass vi
vigo
goro
rous
usly possible?
ly aass po
poss
ssib
ible
le??
The Law Commission expressed the hope that its recommendations would not mean that the
sensibilities of witnesses were protected at the expense of a defendant’s rights, merely that
questions that did not substantially advance the accused person’s case would not be permitted.
However, this requires a difficult judicial balancing act, and, in R v Bovell [2005] 2 Cr App R 27,
the Court of Appeal took what might be considered to be a surprisingly ‘robust’ approach
towards the new provisions.
In Bovell, the defendant had been convicted of wounding with intent, having advanced self-
defence at trial as the basis for his not guilty plea. At first instance he had been refused per-
mission to adduce the alleged victim and chief prosecution witness’s previous convictions for
handling stolen goods and robbery in 1993 (when the witness was 20), for the latter of which
he (the witness) had received four years’ imprisonment following a guilty plea. On appeal, the
defendant argued that these convictions should have been put to the alleged victim, especially
the one for robbery, as it subsequently transpired that this had involved the use of a knife, and
so, it was claimed, showed a propensity for serious violence (potentially relevant in a situation
in which self-defence was being claimed). Nevertheless, the Court of Appeal upheld the convic-
tion, although accepting that had the presence of the knife been known, the trial judge might
have reached a different decision with regard to the admissibility of the robbery conviction.
In Bovell, the court also doubted that a charge made against the complainant, several years
earlier, for wounding with intent, but which had not been proceeded with, and as a result was a
mere allegation, was capable of being evidence for the purposes of s. 100 (though it seems that
in the right circumstances it might be for s. 101). Although the latter point might make sense
(otherwise, there is a danger of trials becoming bogged down in satellite issues), the decision on
the robbery at knife-point is more questionable.
Whether, in Bovell, it can really be said that the alleged victim’s record of violence did not put a
significantly different light on the accused’s claim of self-defence is, perhaps, doubtful. An exces-
sively strict approach to this issue might also lead defendants who have had their applications
refused to argue that they have also had their Article 6 ECHR right to a fair trial denied. (In pass-
ing, it should also be noted that for defendants with previous convictions, adducing a third party’s
misconduct may well be deemed to be an ‘attack’ for the purposes of s. 101(1)(g), see above.)
R v Bovell [2005] 2 Cr App R 401, CA
Rose LJ
As it seems to us, it may be that the judge’s decision with regard to the admissibility of the robbery
offence, in 1993, might have been different had he known that the complainant had then been

carrying a knife. It is to be noted, however in relation to that offence, that, notwithstanding he was
only prosecuted for it some years later, when fingerprint evidence came to light, the complainant
immediately admitted his guilt. This would have been relevant to the judge’s decision. It seems to
us to be unlikely in the extreme that the judge, had he known of the events in 2001, would have
admitted the allegation of a s.18 offence made against the complainant. We say that, first, because
we entertain considerable doubt as to whether the mere making of an allegation is capable of
being evidence within s. 100(1). As the allegation was, in the circumstances which we have identi-
fied, withdrawn, our doubt on this aspect is increased. It is apparent from the circumstances, as
we have summarised them, that if there was to be any question of the s.18 allegation being admit-
ted before the jury, it would necessarily have given rise to investigation of the other subsequent
matters, including the aspersions on the credibility of the victim, the want of independent confir-
mation of his account, and the fact that he had withdrawn the allegation. An excursion into those
satellite matters is, as it seems to us, precisely the sort of excursion which, as was suggested in
para. 12 of the judgment in Hanson, a trial judge should be discouraged from embarking upon. All
of this adds to the unlikelihood of the judge permitting evidence of the 2001 events even if they
had been known about at trial.

Do you feel that the alleged victim’s previous criminal record in Bovelll puts the case in a different
light?
ligh
g t?
Less controversially, in one of the cases considered in R v Antony Weir & Others [2006] 1 Cr App
R 19, the Court of Appeal concluded that a defence witness (the defendant’s girlfriend) in an
assault case should not have been cross-examined about a caution for possession of cocaine, on
the ground that it had substantial probative value to her credibility, where it had been put to her
that she was lying and there was a stark difference between prosecution and defence accounts
of what had happened. Nevertheless, the court did accept that s. 100(1) covered matters of cred-
ibility and also upheld the conviction on the ground that, in the circumstances, it was not
unsafe (the trial judge had subsequently directed the jury to disregard the caution).
Kennedy LJ
The appellant’s submissions are put on two bases: first, that the evidence did not relate to a matter
in issue in the proceedings as the section does not encompass matters of credibility. Secondly,
that even if credibility is encompassed by the section, the evidence did not pass the test of admis-
sibility as it had no substantial probative value in relation to the question of credibility and was
not of substantial importance in the context of the case as a whole. It was submitted that the evi-
dence had very little value in relation to credibility and no relevance at all to the offence in question
because a) the caution did not relate to an offence of dishonesty or show evidence of untruthful-
ness; b) it related to an incident after the events in issue; c) the witness by agreeing to be cautioned
had accepted her guilt; d) the witness was frank about her caution in evidence; and e) there was no
suggestion that she was under the influence of drugs during the incident itself. 69 The appellant

also submits that the conviction is unsafe in the light of the majority verdicts on each count on the
basis that the evidence could have adversely affected their view of the witness despite the judge’s
strong warning. 70 On behalf of the respondent, it is submitted that s. 100(1) must cover the issue
of credibility, for were it not to do so, unfairness would ensue. It was submitted that the evidence
of the caution was relevant to credibility, but it was conceded that it was difficult to suggest that
the evidence had substantial probative value in relation to credibility in the light of the witnesses’
answers. Their primary submission therefore is that the conviction was safe and that the strong
warning given by the judge corrected any harm done by the introduction of the evidence.
Judgment
We now deal with the submissions and the questions arising therefrom. Does s. 100(1) cover issues
of credibility? 73 Although couched in different terms from the provisions relating to the introduc-
tion of the defendant’s bad character, in our view, s. 100(1) does cover matters of credibility. To
find otherwise would mean that there was a significant lacuna in the legislation with the potential
for unfairness. In any event, it is clear from para. [362] of the explanatory notes that the issue of
credibility falls within the section. Did the judge err in coming to the conclusion that the evidence
of the caution had substantial probative value in relation to the witness’s credibility? 74 In our view
he did err for a number of reasons, including those which were put forward by the judge himself
when directing the jury to ignore the evidence of the caution. It follows, therefore, that we find that
the evidence of the caution was inadmissible under s. 100.
Many of the cases on what constitutes ‘other reprehensible behaviour’ under s. 101 will be rele-
vant to s. 100 (though this will not invariably be the case). Nevertheless, there have also been a
number of decisions specific to s. 100. Thus, in R v V [2006] EWCA Crim 1901, the first instance
judge in the trial of a man accused of sexually assaulting and raping his young daughter refused
to grant permission, pursuant to s. 100, for the complainant to be cross-examined about sev-
eral matters which, it was claimed, constituted evidence of ‘other reprehensible behaviour’. On
appeal, the Court of Appeal considered whether these matters came within such a definition
and, if they did, whether leave should have been granted under the section.
In particular, the court in V concluded that the trial judge had been wrong not to allow the
complainant to be cross-examined about an apparently false allegation that she had made, on
an earlier occasion, about being sexually assaulted. In this instance, as there was an admission
to a friend that she had fabricated the allegation, the Court of Appeal concluded that there was
a sufficient evidential basis for asserting that the complaint was untrue; such behaviour was
both ‘reprehensible’ and cogent in the instant case. However, the court concluded that another
application under s. 100, to allow cross-examination on an incident in which the complainant
had been overheard falsely telling other pupils at her school that a teacher had hit her, when at
most there had been accidental contact, had been properly refused; schoolgirl exaggeration did
not constitute reprehensible behaviour.
R v V [2006] EWCA Crim 1901, CA
Crane J
The teacher incident was the subject of an application under section 100 to Judge Brodrick and
had no sexual aspect. On 21 November 2003 J had been overheard asserting to two other pupils

at school that a teacher had hit her. The teacher who overheard this invited her to explain. She
admitted that she had been misbehaving and been sent out of the room. She said that the teacher
stopped her by putting his arm out, but then pushed her back with his arm. Later she conceded
that there had been no push, merely contact with the teacher’s arm.
We are inclined to doubt whether a piece of exaggeration to fellow pupils after some everyday
classroom misbehaviour attains the level of ‘reprehensible’ behaviour envisaged in section 112(1),
read with section 98, of the Criminal Justice Act 2003. If it was, we consider that the judge was justi-
fied in ruling, as he did, that it did not have ‘substantial probative value’ for the purposes of the test
in section 100(1)(b). If it was not, leave was not required, but we do not think any cross-examination
on these lines would have taken the Appellant’s case any further.
Cross-reference Box
Intere
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pp 448–465.
p. 4
448
48–4 465
65.
In R v S (Andrew) [2006] 2 Cr App R 31 the complainant in a case of indecent assault, was work-
ing at the relevant time as a prostitute. The defendant alleged that he had been masturbated by
her for £10, but that she had subsequently demanded more money, threatening to allege rape,
and, when he refused, tried to grab his gold chain.
At trial, defence counsel sought to put to the complainant her previous convictions for
burglary, theft and going equipped to steal. These had been accrued some four years before
the incident in question. The trial judge refused to allow this, feeling that they did not have
‘substantial probative value’. On appeal, the Court of Appeal accepted that under s. 100(1)(b)(i),
‘matter in issue in the proceedings’ must include the creditworthiness of a witness, ie evidence
to show that they were unworthy of belief. As the court noted, otherwise, the provision might
be open to challenge under Article 6 of the ECHR. The Court of Appeal further noted that
credibility under s. 100 might well be wider than a ‘propensity to be untruthful’ in a defendant
under s. 103(1)(b). As a result, it appears that a very bad and recent criminal record for dishon-
esty (but not ‘untruthfulness’) in a case where simple credibility on its own was in issue, might
be admissible under s. 100.
Even so, on the facts of the case, the Court of Appeal felt the trial judge had been right to
refuse the application on the basis of simple credibility. The complainant had always pleaded
guilty to her crimes, none of which had involved false representations.
However, the court went on to conclude that the convictions should have been put to her on
the basis that her propensity to act in the way that the defendant had asserted must be part of
the ‘matters in issue’. In this case, the defendant had claimed that the allegation of indecent
assault arose out of a demand for money with menaces. In the court’s conclusion, the previous
convictions, although old, had substantial probative value with regard to her propensity to be
dishonest, and should have been admitted, as it supported the defendant’s version of events.
Given that the verdict was by a bare majority, and after a long retirement, the conviction was
held to be unsafe.

R v S (Andrew) [2006] 2 Cr App R 31, CA
Laws LJ
The complainant pleaded guilty to each of the previous offences sought to be relied on. None of
them involved making false representations. In addition, as the judge was at pains to note, the
offences are of some antiquity. The fact urged by counsel for the appellant that the jury knew
about the appellant’s good character cannot as a matter of logic increase the probative value of
the complainant’s previous offences in relation to her credibility. In our judgment the judge was
quite right to refuse the application on the distinct basis upon which it was put to him.
13 However, that is not the end of the matter. By focusing on credibility counsel may have lost
sight of a different basis on which it might be said that the complainant’s convictions had substan-
tial probative value in relation to a matter in issue. It will be recalled that the appellant’s case on
the facts was that the complainant demanded cash from him beyond the £10 which he said was
agreed, threatened to cry rape, and tried to take his gold chain. Might not her previous offences
support an argument that she was liable to behave in that way or possess a propensity to do so—in
short, a propensity to act dishonestly?
14 In the case of a defendant whose bad character is sought to be put in, propensity to commit
offences of the kind charged is, by s. 103(1)(a), included within matters in issue for the purposes
of s. 101. Section 100 contains no analogue to s. 103(1)(a), but in our judgment it can hardly be
doubted, and Miss Beattie for the Crown accepts, that a complainant’s propensity to act in the way
the defendant asserts he or she acted must likewise be part of ‘the matters in issue’.
15 Here the appellant’s case was to the effect that the complainant demanded money with
menaces and tried to take his property. Her persistent criminal record of offences of dishonesty,
notwithstanding their antiquity, might in our judgment very well be said to possess substantial
probative value upon this issue: did she have a propensity to act dishonestly? The judge, as we
have indicated, was not faced with an application put on that basis. Had he been, we consider that
it would have been proper for him to accede to it. The evidence of propensity thus described would
have been a matter of some importance for the jury’s consideration. We consider the fact that the
jury proceeded in ignorance of it renders the conviction unsafe.
There is still some doubt as to the impact of the provision on the existing collateral/issue
distinction with regard to questions that go purely to credit (rather than issue, which by
definition will not be collateral). Will ‘adduce’ mean merely that such questions can be asked,
but that a denial that does not come within an existing exception to the finality of answer to
a collateral question rule, cannot be rebutted unless they fall within an exception (as convic-
tions do)?
Given that the ordinary dictionary meaning of ‘adduce’ includes ‘cite as proof or instance’,13
and that the abolition of common law rules on evidence of bad character under s. 99 might be
deemed to extend to the rule of finality on collateral issues, it is possible that if the court does
allow a question to be put to a witness on their non-conviction bad character (even if it goes
to credit), it will have at least the discretionary power to allow a denial to be rebutted by other
evidence. Thus, in the perhaps unlikely event that post-Act a court allowed the hypothetical
prostitute eye witness to be questioned about her work, it could permit one of her clients to be
called to rebut any denial.
13
The Concise Oxford Dictionary (6th edn, 1976, Oxford University Press).

defendant bad character in civil cases 231
Civil Cases
The position established at common law with regard to witnesses remains in force in civil
matters (obviously unaffected by the 2003 Act). However, the impact of the Rehabilitation of
Offenders Act 1974 limits the extent to which the previous convictions of witnesses can be
referred to in civil proceedings (see below).
5. Defendant Good Character in Civil Cases

Generally speaking, the good character of a party to civil proceedings, whether defendant or
claimant, is not admissible, unlike the normal situation with regard to defendants in criminal
cases. As Baron Martin noted in A-G v Radcliff (1854) 10 Exch 84, in most cases, no presump-
tion would arise: ‘. . . from the good character of the defendant, that he did not commit the
breach of contract or of civil duty alleged against him’. Of course, if a party to litigation has
his credibility attacked by unwarranted aspersions on his character, he can call evidence of his
good character to rebut the allegation.
6. Defendant Bad Character in Civil Cases
Introduction
A defendant’s character can be attacked in civil proceedings with a view to undermining his
credit, just like that of any other witness. There is no special regime for defendants in civil tri-
als, unlike the situation that governs the accused in criminal proceedings. Thus, for example, a
defendant with previous convictions can have them put to him in cross-examination.
Nevertheless, it should be noted that convictions that are ‘spent’ cannot normally be referred
to in civil cases (for any witnesses) as a result of s. 4(1) of the Rehabilitation of Offenders Act
1974, though, under s. 7(3), the court may allow their adduction if satisfied that ‘justice cannot
be done in the case’ without referring to them. In Thomas v Metropolitan Police Commissioner
[1997] QB 813 the Court of Appeal concluded that, in appropriate cases, s. 7(3) could be invoked
to adduce spent convictions that were relevant to credit as well as those that went directly to an
issue in the case.
Section 4 of the Rehabilitation of Offenders Act 1974, (Partial

extract), Effect of rehabilitation
(1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the
purposes of this Act in respect of a conviction shall be treated for all purposes in law as a

person who has not committed or been charged with or prosecuted for or convicted of or
sentenced for the offence or offences which were the subject of that conviction; and, notwith-
standing the provisions of any other enactment or rule of law to the contrary, but subject as
aforesaid—
(a) no evidence shall be admissible in any proceedings before a judicial authority exercising
its jurisdiction or functions in Great Britain to prove that any such person has committed or
been charged with or prosecuted for or convicted of or sentenced for any offence which was
the subject of a spent conviction; and
(b) a person shall not, in any such proceedings, be asked, and, if asked, shall not be required
to answer, any question relating to his past which cannot be answered without acknowledg-
ing or referring to a spent conviction or spent convictions or any circumstances ancillary
thereto. . . .
When a conviction becomes ‘spent’ depends on the sentence originally imposed following the
finding of guilt. Thus, under s. 5 of the 1974 Act, a conditional discharge is spent at the end of
the period for which the defendant was discharged or a year after conviction (whichever is the
greater); however, a fine takes five years, and a prison sentence of less than six months, seven
years, to become spent. A sentence of more than 30 months’ imprisonment never falls within
the Act, and so can always be put, as of right, to a defendant in civil proceedings.
Civil Similar Fact Evidence

Perhaps more significantly, past misconduct can be indicative of present behaviour in civil as
well as criminal matters and thus can be used to establish propensity under the common law
‘similar fact’ doctrine. The legal use of this type of evidence was neglected in civil cases, at
least when compared to the extensive jurisprudence on its criminal counterpart. It was only
rarely mentioned in judgments, and then often by reference to criminal case law on the topic.
Ironically, however, given the abolition of the similar fact doctrine in criminal trials under
s. 99(1) of the CJA 2003, it is only in civil cases that it will be encountered in future. A number
of cases, stretching back over a century, are indicative of the doctrine at work. Thus, in Hales v
Kerr [1908] 2 KB 201, evidence from a barber’s customers that they, too, had become infected
with ring-worm, after having been cut and bandaged by the defendant in the recent past, was
admitted to support the plaintiff ’s claim to having been negligently infected in a similar fash-
ion. It suggested that the defendant had an unhygienic system of work.
Hales v Kerr [1908] 2 KB 601, King’s Bench Division
Channell J
. . . in the doctor’s opinion antiseptics ought to be used for cleansing the razors in a barber’s shop.
Then if there is evidence that a practice prevails in the defendant’s shop of cleansing his razors
and appliances in a particular way, and a question arises whether that practice is a dangerous one,
evidence to shew that a similar practice in other barbers’ shops had led to the communication

of disease, and was therefore dangerous, would be admissible. If so, evidence to shew that the
practice had led to the communication of disease in the defendant’s own establishment would be
equally admissible . . . where the allegation is of a practice to do or omit to do a particular act, and
the material issue is the existence or non-existence of the alleged practice, evidence that the act
or omission has happened on several occasions is always admissible to shew that its happening on
a particular occasion is not a mere accident or a mere isolated event.
The whole area of civil similar fact evidence was the subject of extensive and long overdue
consideration by the House of Lords in O’Brien v Chief Constable of the South Wales Police
[2005] 2 WLR 1038. In this case, the claimant alleged that two of the defendant’s offi-
cers had been responsible for his malicious prosecution for murder (in 1987) and guilty of
misfeasance in public office by, inter alia, putting him under improper pressure to make
admissions, making up statements that had allegedly been made by him (‘verballing’) and
pressuring a vulnerable co-defendant to implicate him. He wished to adduce evidence that
the same officers had been involved in similar misconduct during major investigations and
prosecutions in 1983 and 1990 (though this was denied by the defendant). This was permit-
ted at a case management conference prior to trial, a decision that was, broadly, upheld by
the Court of Appeal.
On further appeal to the House of Lords, counsel for the defendant cited a Victorian
civil case, Metropolitan Asylum District Managers v Hill (1882) 47 LT 29, to suggest that
such evidence should not be admitted if it was of limited cogency, but only if it had an
‘enhanced probative value’, ie if it was of special weight. This is, in some respects, the
situation that criminal similar fact evidence had reached in DPP v P [1991] 2 AC 447,
the leading case on the subject prior to abolition. However, their Lordships rejected this
argument and dismissed the appeal, upholding the decision of the Court of Appeal. Lord
Phillips openly suggested that it was ‘not obvious’ that the test in DPP v P was appropriate
to civil cases.

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place this common law doctrine with a statutoryy p
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Obviously, the dynamics of most civil trials are fundamentally different to criminal ones, and
this has significant consequences for similar fact evidence in such forums. In particular, civil
cases are usually presided over by an experienced professional lawyer (rather than by jurors or
lay magistrates) who should be well trained in the art of giving evidence its due weight, even if
it is superficially prejudicial. Even more importantly, the defendant does not face the sanctions
and stigma of a criminal conviction, while there is an obligation on the trial judge to be equally
fair to both claimant and defendant, in a manner that does not apply to the Crown in criminal
matters. Consequently, the courts have traditionally been more willing to allow such evidence
in civil matters, as Lord Denning noted in Mood Music Publishing Company v De Wolfe Ltd.
[1976] 1 All ER 763.

Mood Music Publishing Company v De Wolfe Ltd. [1976] 1 All ER 763, CA
Denning MR
In civil cases the courts have followed a similar line [to criminal ones] but have not been so chary
in admitting it. In civil cases the courts will admit evidence of similar facts if it is logically proba-
tive, that is, it is logically relevant in determining the matter which is in issue: provided that it is not
oppressive or unfair to the other side and also that the other side has fair notice of it and is able to
deal with it.
The Two-stage Test

In Mood Music, Lord Denning asserted that in civil cases the courts would admit evidence of
similar facts if it was: ‘. . . logically relevant in determining the matter which is in issue: provided
that it is not oppressive or unfair to the other side’. The notion of such a two-stage test was re-
visited in O’Brien, where the House of Lords approved the approach adopted in the same case
by the Court of Appeal. First, it had to be asked whether the proposed evidence was ‘admis-
sible’. By this, the court, like Lord Denning, meant was it relevant to the facts in issue? If a
positive answer to this question was reached, the second question had to be considered; namely,
whether such evidence should be admissible. By this, their Lordships meant that a judge had to
consider whether there were policy factors that militated against its reception. In Mood Music,
Lord Denning had been particularly concerned that notice be provided to the opposing party
of any intention to adduce civil similar fact evidence, so that they could deal with it effectively
at trial. This is of limited significance in the modern era, where advance disclosure of evidence
is normal in the civil litigation process.
However, in O’Brien, Lord Bingham expressly considered a number of other factors that
were potentially relevant to such a decision, and which might be expected to recur on a fairly
regular basis. Amongst them was the danger of distracting the tribunal’s attention from the
main issue in the case to something that was essentially collateral. Additionally, a judge might
consider the potential of the evidence to cause ‘unfair prejudice’. Unless its probative value
was judged to outweigh such prejudice by a ‘considerable margin’ it was likely to be excluded.
Finally, admitting such material might draw out trials to an excessive degree, perhaps by many
weeks, driving up litigation costs in the process and taxing witnesses by requiring them to
answer questions about matters that were distant in time and poorly recorded. Other factors
might also be important but would occur less frequently, being more case specific.
The Test in Practice

The first part of the test is relatively straightforward. In many situations, a litigant’s miscon-
duct in the past will be relevant to the likelihood of something happening in the present. Thus,
to take the facts of Mood Music, the plaintiff was allowed to adduce evidence in a copyright
case that the defendant had previously reproduced other works that were also the subject of
copyright, something that cast a different light on his defence of coincidence as to the marked

similarities between his song and that of the plaintiff. As Lord Denning observed: ‘Whereas
it might be due to mere coincidences in one case, it is very unlikely that they would be coinci-
dences in four cases.’ It strongly suggested that the defendant was a habitual copier.
The second stage is somewhat more difficult. It seems that all of the factors identified by
Lord Bingham are likely to be highly case sensitive. Thus, as Lord Phillips expressly observed
in O’Brien, in those rare situations in which a jury is employed in a civil hearing, the risk of
prejudice is likely to be far more acute than in the vast majority of cases where the matter is
presided over by a professional judge, who is experienced in ‘putting aside irrational prejudice’.
This might be particularly important where the extrinsic evidence is of a scandalous nature; for
example, the previous misconduct cited consists of allegations of what would amount to serious
crimes if proved.
Additionally, the risk of excessively prolonging and distorting the litigation process will also
vary enormously, and needs to be weighed up against the probative value of the evidence and
any other case specific factors. However, as Lord Phillips noted, this is also a ‘consideration
of general application’ to civil trials and not unique to the adduction of similar fact evidence.
Indeed, under rr. 1(1) and 32(2) of the CPR 1998, the courts are expressly empowered to allot
an appropriate amount of time to each case and to exclude evidence that ‘would otherwise be
admissible’ in doing so. It is apparent that r. 32(2) was primarily aimed at ‘case management’
(whatever other uses it may now have), and was designed to prevent civil trials being drawn
out indefinitely by the adduction of evidence that, though technically ‘relevant’, was of little
weight.
For example, suppose that in Hales v Kerr there was only one other customer to support
the plaintiff ’s claim against the barber, and it was alleged that he had been infected by the
defendant more than 20 years earlier, when the latter individual had been a trainee hair-
dresser, a claim that was also vigorously disputed by the defendant. Although it might still
have a minimal degree of cogency with regard to the present trial, its value would probably
be greatly outweighed by the amount of time consumed, and distraction occasioned, in pur-
suing it, along with the inherent difficulty in establishing what precisely had occurred two
decades earlier.
Cross-reference Box
Rule 32.2 has introduced an unprecedented judicial discretion to exclude relevant evidence in civil
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Nevertheless, although important and likely to be encountered quite regularly in practice,

these factors are not exhaustive. There might be others, special to an individual case, which
would also be highly relevant. Thus, in O’Brien, the court noted that the claimant’s allega-
tions were exceptionally serious; the alleged misconduct by the defendant had had very grave
consequences (he had been imprisoned for 11 years) and also went to the heart of the integrity
of the criminal justice system. This might be something that would warrant exploration, even
if it meant a considerable extension to the trial (almost a month, it was thought, in that case).
Similarly, Lord Bingham suggested that vindication of reputation might also be among such
factors, while the Court of Appeal noted that in cases like O’Brien the claimant was often put
in special difficulties because such trials often ‘boiled down’ to one man’s word being tendered

against that of a number of police-officers; this was a problem that similar fact evidence might
help overcome.
The Impact of O’Brien

In Berger v Raymond Sun Ltd [1984] 1 WLR 625, Dillon LJ observed that the test for admissibil-
ity of similar fact evidence was ‘in general the same in civil and in criminal cases’. However, in
the light of O’Brien, and taking DPP v P as the final position in criminal trials, this no longer
seems to be the case. The test in civil cases appears to be both more liberal and yet stricter than
that which went before. It is less demanding when considering the weight such evidence must
attain before it can be considered for admission. As a result, some older views on the topic, such
as those advanced by Neil LJ in Thorpe v Chief Constable of Greater Manchester Police [1989] 2
All ER 827, would now appear to be incorrect. The judge felt that even in civil cases: ‘Such evi-
dence is not admissible . . . merely to show that the party concerned has a disposition to commit
the conduct alleged.’
However, as Brooke LJ observed, at the Court of Appeal level hearing of O’Brien, nowadays,
if the evidence was probative of a party’s normal conduct, and that was relevant to an issue in
the case, the: ‘. . . similar facts do not have to be elevated to a system of conduct before they are
admissible’. The liberalization seen in O’Brien is not surprising. It would be strange if, after the
advent of the CJA 2003, it were easier to adduce evidence of previous misconduct by a defend-
ant in a criminal trial than in a civil matter, and it would, perhaps, be mistaken to continue to
define the doctrine by reference to criminal cases that are no longer operative in criminal for-
ums. Against this, however, the modern test is, arguably, ‘stricter’ in civil matters by allowing
judges to consider the potential impact of such evidence on other factors, such as trial length
and complexity, and permitting them to exclude it on those grounds alone.
In practice, in civil cases, previous misconduct or misfeasance that is highly cogent, has
nothing particularly ‘scandalous’ about it (especially if a jury is being employed), and can be
adduced and presented to the court relatively quickly and conclusively, is likely to be admissible.
Evidence that is of limited weight (albeit theoretically ‘relevant’), which will take a long time
to adduce, has special features likely to occasion ‘prejudice’ and which can only be established
with a degree of uncertainty is likely to be excluded. Between these two extremes, and having
regard to any other special factors, a trial judge must conduct a delicate balancing exercise when
deciding where to draw the line.
In the light of O’Brien, it might be argued that, despite the term still being in use, there is, in
reality, no longer a special doctrine of similar fact evidence in civil cases. Many of the conclu-
sions reached in the case are explicable by other evidential principles, such as simple relevance
or as a response to the Civil Procedure Rules. However, this would be an exaggeration, as there
is still a residual discretion to reject such evidence simply because it might occasion reasoning
or moral prejudice, rather than for any other reason; this is a hallmark of the similar fact doc-
trine at common law. Nevertheless, this is likely to be exercised only rarely, jury trials, perhaps,
apart. In the light of Lord Bingham’s observation in O’Brien, that similar fact evidence can be
‘very important, even decisive’ in civil cases other litigants may be encouraged to adduce such
evidence in future. Against this, the case may also remind the courts that a general exclusionary
rule means that evidence of extrinsic defendant misconduct should not be adduced informally
(as often occurs in practice in civil cases).

O’Brien v Chief Constable of the South Wales Police

[2005] 2 WLR 1038, HL
Lord Bingham
That evidence of what happened on an earlier occasion may make the occurrence of what hap-
pened on the occasion in question more or less probable can scarcely be denied. If an accident
investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain
the cause of a disputed recent event, any of them would, as a matter of course, inquire into the
background history so far as it appeared to be relevant. And if those engaged in the recent event
had in the past been involved in events of an apparently similar character, attention would be paid
to those earlier events as perhaps throwing light on and helping to explain the event which is the
subject of the current inquiry. To regard evidence of such earlier events as potentially probative is a
process of thought which an entirely rational, objective and fair-minded person might, depending
on the facts, follow. If such a person would, or might, attach importance to evidence such as this,
it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For
while there is a need for some special rules to protect the integrity of judicial decision-making on
matters of fact, such as the burden and standard of proof, it is on the whole undesirable that the
process of judicial decision-making on issues of fact should diverge more than it need from the pro-
cess followed by rational, objective and fair-minded people called upon to decide questions of fact
in other contexts where reaching the right answer matters. Thus in a civil case such as this the ques-
tion of admissibility turns, and turns only, on whether the evidence which it is sought to adduce,
assuming it (provisionally) to be true, is in Lord Simon’s sense probative. If so, the evidence is legally
admissible. That is the first stage of the inquiry. The second stage of the inquiry requires the case
management judge or the trial judge to make what will often be a very difficult and sometimes a
finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex
hypothesi is legally admissible, should be admitted. For the party seeking admission, the argument
will always be that justice requires the evidence to be admitted; if it is excluded, a wrong result may
be reached. In some cases, as in the present, the argument will be fortified by reference to wider
considerations: the public interest in exposing official misfeasance and protecting the integrity of
the criminal trial process; vindication of reputation; the public righting of public wrongs. These are
important considerations to which weight must be given. But even without them, the importance
of doing justice in the particular case is a factor the judge will always respect. The strength of the
argument for admitting the evidence will always depend primarily on the judge’s assessment of the
potential significance of the evidence, assuming it to be true, in the context of the case as a whole.
While the argument against admitting evidence found to be legally admissible will necessarily
depend on the particular case, some objections are likely to recur. First, it is likely to be said that
admission of the evidence will distort the trial and distract the attention of the decision-maker by
focusing attention on issues collateral to the issue to be decided. This is an argument which has
long exercised the courts (see Metropolitan Asylum District Managers v Hill (1882) 47 LT 29, 31,
per Lord O’Hagan) and it is often a potent argument, particularly where trial is by jury. Secondly,
and again particularly when the trial is by jury, it will be necessary to weigh the potential probative
value of the evidence against its potential for causing unfair prejudice: unless the former is judged
to outweigh the latter by a considerable margin, the evidence is likely to be excluded. Thirdly,
stress will be laid on the burden which admission would lay on the resisting party: the burden in
time, cost and personnel resources, very considerable in a case such as this, of giving disclosure;
the lengthening of the trial, with the increased cost and stress inevitably involved; the potential
prejudice to witnesses called upon to recall matters long closed, or thought to be closed; the loss
of documentation; the fading of recollections. It is, I think, recognition of these problems which
has prompted courts in the past to resist the admission of such evidence, sometimes (as, perhaps,

in R v Boardman [1975] AC 421) propounding somewhat unprincipled tests for its admission. But
the present case vividly illustrates how real these burdens may be. In deciding whether evidence
in a given case should be admitted the judge’s overriding purpose will be to promote the ends of
justice. But the judge must always bear in mind that justice requires not only that the right answer
be given but also that it be achieved by a trial process which is fair to all parties.
Summary
● Previous behaviour, good and bad, can be an indicator as to present conduct.

● It can affect the way a witness’s testimony is viewed, ie go to credit.
● It can be a predictor as to likely conduct in certain situations, ie go to issue via propensity.
● Excessive and undeserving significance can be placed on the significance of previous conduct; ie it
can occasion ‘prejudice’.
● Defendants in criminal cases without previous convictions are normally referred to as having ‘good
characters’.
● Defendants in criminal cases with good characters are always entitled to the ‘second limb’ of the
Vye direction on propensity.
● Defendants in criminal cases with good characters who give evidence are also always entitled to a
‘first limb’ credibility direction.
● Occasionally, ‘blemished’ defendants without previous convictions who admit to offences, or those
with previous convictions that are minor or distant, may be refused or granted good character
directions, depending on the circumstances of the case.
● Defendant bad character in criminal cases is now almost entirely regulated by Part 11 of the Criminal
Justice Act 2003, and s. 101 in particular.
● Bad character usually consists of convictions, but can extend to other areas of reprehensible con-
duct in an individual’s life.
● Such bad character normally has to satisfy one or more of the seven gateways in s. 101(1) to be
adduced.
● Whenever the prosecution (but not a co-defendant) attempts to adduce such evidence under s. 101(1)
a trial judge has a discretion to refuse to admit it, whether from the Act itself or as a result of s. 78 of
the Police and Criminal Evidence Act 1984, even if one of the gateways is, prima facie, satisfied.
● The uses to which such bad character can be put by the tribunal of fact, once admitted, will depend,
in part, on the gateway through which it entered the trial, but also on its wider relevance to the
instant case. Gateway is not decisive of its use.
● A few older statutes, regulating specific areas of bad character, have survived the introduction of
the 2003 Act, though their significance will now usually be relatively minor.
● The similar fact doctrine developed at common law survives in civil cases, despite being abolished
in criminal trials.
● Such evidence appears to require less probative force that was formerly the case in criminal
hearings to be admitted in civil forums.
● However, the court can have regard to a wider range of policy factors than was the case in criminal
trials when deciding whether to exclude such evidence.
● These include the efficient use of court time, the risk of distracting the tribunal of fact, litigation
expense and the creation of prejudice.
● The case of O’Brien may encourage more litigants to attempt to adduce such evidence in future.

Further reading
HL Ho, ‘Similar Facts in Civil Cases’ (2006) Oxford Journal of Legal Studies 26(1), 131–152
J James, ‘Good Character Directions and Blemished Defendants’ [1996] 2 Web JCLI
Law Commission Report No 273, Evidence of Bad Character in Criminal Proceedings (2001, London:
The Stationery Office)
R Munday, ‘What Constitutes a Good Character?’[1997] Crim LR 247
R Munday, ‘What Constitutes “Other Reprehensible Behaviour” under the Bad Character Provisions
of the Criminal Justice Act 2003?’ [2005] Crim LR 24
R Munday, ‘Bad Character Rules and Riddles: “Explanatory Notes” and True Meanings of Section
103(1) of the Criminal Justice Act 2003’ [2005] Crim LR 337
R Munday, ‘Cut-Throat Defences and the “Propensity to be Untruthful” under Section 104 of the
Criminal Justice Act 2003’ [2005] Crim LR 624
M Redmayne, ‘The Relevance of Bad Character’ [2002] Cambridge Law Journal 684
J Spencer, Evidence of Bad Character (2006, Hart Publishing)
C Tapper, ‘The Criminal Justice Act 2003: Evidence of Bad Character’ [2004] Crim LR 533
Questions for Discussion
1. Abdul, who writes jingles for advertisements, is accused of raping Balita. It is alleged that
he offered her a lift in his car on a rainy day, and then drove her to a remote wood. There, it is
claimed that he sucked her toes before raping her. Abdul argues that although Balita picked him
out on an ID parade she was mistaken. Shortly before the trial the prosecution receive several For suggested
approaches,
pieces of information. One of Abdul’s former girlfriends, Charlotte, comes forward to say that
please visit the
she regularly had sexual intercourse with him in the same wood several years earlier and that he
Online Resource
quite frequently sucked her toes in the process. Another woman, Delia, informs the Crown that Centre
on the day in question she was offered a lift by Abdul, but turned it down as he seemed a little
‘strange’. The prosecution has also found that, several years earlier, Abdul was convicted of
committing an indecent assault in a (different) wood, and has another conviction, from 20 years
ago, for raping a woman in his car after she accepted a lift from him. All of these women had their
hair in dreadlocks and were wearing very short skirts at the time the offences were committed,
as was Balita. To compound his problems, Abdul finds that he is being sued for breach of copy-
right by Eleanor, who alleges that one of Abdul’s recent advertisement jingles is very similar to
one that she produced seven years earlier. Abdul claims that this is sheer coincidence. However,
Eleanor has found out that he was successfully sued by another advertising agency, two years
earlier, for a similar breach of copyright.
(a) Will the Crown be allowed to adduce the evidence of Charlotte and Delia, as well as
Abdul’s previous convictions, to support their case on the rape of Balita?
(b) Will Eleanor be able to adduce evidence from the previous action in which Abdul was suc-
cessfully sued for breach of copyright to support her own action?
2. Albert, Ben, Clare and David are charged with the theft of a camera from a shop. It is alleged
that they set off a fire-alarm and took the camera in the ensuing confusion. They were detained
outside the store by two plain-clothes store detectives, Edward and Frank, who had allegedly
witnessed them taking the item from a shelf.

Albert has a previous conviction for shoplifting, apparently carried out after he set off a
sprinkler system. Clare also has a conviction for theft from a department store, but in her case
committed while she was working for the shop itself as a sales assistant. Ben has a previous
conviction for criminal damage. David is of previous good character, and works voluntarily on
Saturdays at a soup kitchen for tramps; the manager of the kitchen is eager to tell the court
about his good work. All the defendants decide to give evidence in their defence. During the
trial, Ben says that Edward and Frank are ‘lying thugs’ and have fabricated their evidence. Albert
says that the two detectives smelt faintly of beer, treated him ‘robustly’, and appeared to be
‘confused and disorientated’, something that may have led them to make a ‘mistake’ as to what
had occurred. Clare, while testifying, states that she is a ‘thoroughly decent human being’.
Discuss any issues raised on the above facts.
3. Ahmed, Brian, Charles and Diana are accused of murdering Edwina in the course of a bur-
glary. The prosecution case is that the four defendants burst into Edwina’s flat one evening,
hoping to steal items of value and, when confronted by Edwina, beat her to death. All four
defendants plead not guilty and all but Diana give evidence at trial in their own defence. Ahmed
has four recent convictions for theft. Brian has a conviction for attempted murder. He has also
been charged and acquitted of burglary and was sacked from his previous job because he
was suspected of stealing from his workmates. Charles has a conviction for indecent assault,
another for rape and a third for perjury. Diana has one previous conviction for criminal damage
but has also faced disciplinary action several times for fouls committed while playing hockey. At
trial, Ahmed denies being involved in the crime, but admits meeting the other defendants later
on the same night that the crime occurred. He says that he saw blood on Charles’ hand, and
noticed that all three of them looked ‘nervous’. Subsequently, one of the witnesses called by
Charles, to support an alibi defence that he is running, suddenly states, while giving his evidence
and without any prompting, that Charles is ‘the kindest, gentlest man on earth’. Additionally,
while describing his movements on the evening in question, Charles gives evidence that he
gave a sermon on the perils of violence at his local Church during the relevant time. While cross-
examining Fred, a policeman who attended the crime scene, and who is giving evidence for
the Crown, Charles’ counsel also suggests to him that he is ‘mistaken’ in claiming that Charles
made a lengthy admission to the crime, while being driven to a police-station for interview after
arrest. Further, Charles’ counsel suggests that the crime may actually have been committed
by Edwina’s married lover, Fergus, who is not in court, because Edwina was blackmailing him.
Diana, who does not give evidence, says through her counsel that the investigating police-
officers, including Fred, are ‘pathological liars’.
Will counsel for the Crown, or any co-defendants, be allowed to cross-examine any of the
accused about their previous convictions, charges or misbehaviour, or adduce evidence of
those matters? If they are, what are the limitations on such cross-examination?
4. What use, if any, is a ‘good character’ to a defendant in a criminal trial?
5. Albert is accused of assault occasioning actual bodily harm. The alleged victim, Boris, claims
that Albert attacked him in a public house, after he accidentally trod on his (Albert’s) toes. His
account is supported by Clare, who says that she was an eyewitness to the incident, and by
David, the barman. Boris has a previous conviction for common assault, from 10 years earlier.
Clare has a recent conviction for perjury. David has a 15-year-old conviction for shoplifting.
Will Albert be allowed to adduce the previous convictions of the three prosecution
witnesses?

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Character Evidence

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CHARACTER

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S Lloyd Bostock, ‘The effects on Lay Magistrates of Hearing that the

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2. Defendant Good Character Evidence in

R v Rowton (1865) Le & Ca 520, CCR

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R v Redgrave (1981) 74 Cr App Rep 10, CA

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Uses of Defendant Good Character

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Judicial Directions on Defendant Good Character

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R v Vye [1993] 1 WLR 471, CA

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JSB Crown Court Bench Book 1, Specimen Directions, ﬁfth edition,

Pause for reﬂection

Good Character and ‘Blemished’ Defendants

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R v Aziz [1995] 3 WLR 52, HL

R v Gray [2004] 2 Cr App R 30, CA

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3. Defendant Bad Character Evidence in

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Evidence of Bad Character in Criminal Proceedings Law Commission

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Abolition of the Common Law Rules

Definition of Bad Character

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R v Edwards (Stewart) & others [2006] 2 Cr App R 4, CA

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Part of the Offence Itself

R v Tirnaveanue [2007] 2 Cr App R 23, CA

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The Seven Gateways for Bad Character Evidence

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Section 101 of the Criminal Justice Act 2003, Defendant’s bad

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R v Anthony Sawoniuk [2000] 2 Cr App R 220, CA

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R v Ifzal Iqbal [2006] WL 163 4992, CA

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Section 101(d)–(g): Introduction

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R v Highton [2005] 1 WLR 3472, HL

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Old Bailey Sessions Papers, 24 February 1686, Trial of George Cliff

DPP v P [1991] 2 AC 447, HL

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R v Chopra [2007] 1 Cr App R 16, CA